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VISITATION  AND  SEARi 


m; 


OB, 


AN  HISTORICAL  SKETCH 


OF   THE 


BRITISH  CLAIM  TO  EXERCISE  A  MARITIME  POLICE 
OVER  THE  VESSELS  OF  ALL  NATIONS, 


IN 


PEACE    AS    WELL    AS    IN   WAR, 


AN  INQUIRY  INTO  THE  EXPEDIENCY  OF  TERMINATING  THE 
EIGHTH  ARTICLE  OF  THE  ASHBURTON  TREATY. 


BY 

WILLIAM  BEACH    LAWRENCE, 
in 

EDITOR  OF  "  WHEATON'S  ELEJIESTS  OF  INTERNATIONAL  LAW." 


BOSTON: 
LITTLE,    BROWN    AND    COMPANY. 

1858. 


\    fc 


* 


Entered  according  to  Act  of  Congress,  in  the  year  1858,  by 

LITTLE,  BROWN  AND   COMPANY, 
In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


CAMBRIDGE   : 
ALLEN     AND     FAKNHABI,      P  K  I  X  T  E  E  S. 


r 


THE  following  Essay  is  based  on  an  article  prepared 
for  the  Newport  Advertiser,  of  whose  columns  the 
author  of  these  sheets  has,  during  the  last  six  years, 
occasionally  availed  himself,  for  the  examination  of 
subjects  of  general  interest.  The  original  publication 
appeared,  on  the  16th  of  June,  when  it  was  supposed 
that  we  were  on  the  eve  of  a  protracted  discussion  with 
England,  in  reference  to  the  visitation  and  search  of  our 
vessels,  in  time  of  peace.  That  matter,  so  far  as  regards 
the  United  States,  is  now  understood  to  have  been 
definitively  settled  by  the  acceptance,  on  the  part  of 
Great  Britain,  of  the  exposition  of  international  law 
presented  by  the  American  Secretary  of  State,  which, 
it  was  admitted,  accorded  with  the  judicial  decisions  of 
Lord  Stowell,  and  with  the  parliamentary  declarations 
of  the  Duke  of  Wellington.  These  views  have  since 
also  received  the  sanction  of  the  learned  Ex-Chancellor, 
Lord  Lyndhurst. 

671513 


iy  ADVERTISEMENT. 

It  is  believed  that  the  history  of  negotiations,  in- 
volving the  cardinal  principles  of  maritime  jurispru- 
dence, cannot  be  without  interest  to  the  citizens  of  a 
nation  having  the  largest  navigation  of  any  people ; 
while  the  recognition  of  the  independence  of  our  flag 
may  well  absolve  us  from  the  onerous  obligations  as- 
sumed by  the  Ashburton  Treaty,  the  objections  to 
which  were  so  fully  pointed  out,  in  the  Senate,  by 
our  present  chief  magistrate,  at  the  time  of  its  ratifica- 
tion. 

Aware  that  any  claim  which  this  work  can  have  to 
notice  must  arise  from  the  intrinsic  accuracy  of  its 
views,  the  author  has  endeavored  to  apply,  without 
either  national  or  partisan  prejudice,  to  facts,  as  they 
have  arisen,  the  universally  recognized  rules  of  public 
law  and  political  science.  The  statutory  provisions  of 
Great  Britain  speak  for  themselves.  He  trusts  that 
no  one  will  impute  to  him,  because  he  has  deemed  it 
his  duty  to  dissent  from  the  course  of  Mr.  Webster,  on 
a  matter  connected  with  our  foreign  relations,  any  dis- 
respect for  the  memory  of  one,  who,  by  jeoparding  for 
the  Union  an  unequalled  sectional  popularity,  added  to 
the  title  of  jurist  and  statesman  that  of  patriot. 

OCHRE  POIXT,  NEWPORT,  August  25,  1858. 


CONTENTS. 


PAGE 

Importance  attached  by  the  United  States  to  their  maritime  rights,          .        .  1 

The  vessels  of  a  nation,  on  the  high  seas,  a  portion  of  its  territory,      .        .  4 

The  belligerent  right  of  visitation  and  search, 4 

"Declaration"  of  the  Congress  of  Paris,  1856,  ....    '    .        .  5 

Objections  of  the  United  States  to  the  abolition  of  privateering,       ...  7 

Debate  in  the  House  of  Lords  on  the  "  Declaration  of  Paris,"    ...  9 

Proposed  abolition  of  contraband  of  war, 11 

Impressment  of  seamen  effected  through  belligerent  right  of  search,    .        .  13 
Hautcfeuille's  restriction  on  the  belligerent  right  of  search,       .        .        .        .15 

Object  of  Great  Britain  in  attempting  the  right  of  search  in  peace,       .        .  16 
American  ships,  seized  under  the  belligerent  claim  of  visitation  and  search, 

condemned  for  being  engaged  in  the  slave-trade, 17 

Refusal  of  France  and  Portugal  to  grant  England  a  reciprocal  right  of  search,  19 

Declaration  of  the  Congress  of  Vienna,  respecting  the  slave-trade,      .        .  21 

Treaties  with  Spain  and  Portugal,  for  a  limited  right  of  reciprocal  search,       .  21 

Decision  of  Lord  Stowell,  repudiating  all  right  of  search,  in  peace,     .        .  22 

Treaty  between  England  and  the  Netherlands, 24 

Refusal  of  the  Congresses  at  Aix  la  Chapelle  and  Verona  to  grant  right  of 

search,  or  to  make  slave-trade  piracy, 25 

British  negotiations  with  the  United  States  as  to  the  slave-trade,     ...  26 
Proceedings  of   Congress,  declaring  slave-trade  piracy,  and  inviting  foreign 

cooperation, 27 

Convention  made  with  England  for  reciprocal  search,  but  not  ratified,     .        .  28 

Decisions  of  the  Supreme  Court  on  the  slave-trade  and  right  of  search,        .  30 

French  decisions,     .        ,,        „ 31 

Treaties  of  England  with  Sweden  and  Brazil,  and  of  1831   and  1833  with 
France,  and  the  adhesion  to  the  latter  of  Denmark,  Sardinia,  the  Hanse- 

towns,  Tuscany,  Naples,  and  Hayti, 32 

Debates  on  the  British  Act  of  1 839,  indemnifying  officers  for  the  capture  of  the 

vessels  of  all  nations  suspected  to  be  engaged  in  the  slave-trade,       .        .  32 
Mixed  tribunals  established  by  treaties  between  Great  Britain  and  other  pow- 
ers,        36 

Disposition  of  captured  slaves, 37 

American  reclamations  for  detention  of  vessels,  including  correspondence  of 

Mr.  Stevenson  with  Lords  Palmerston  and  Aberdeen, ....  38 

A* 


yi  CONTENTS. 

President  Tyler's  message,  Dec.  7,  1841,        .        .        .        ...        .41 

Quintuple  Treaty  signed, 

General  Cass  intervenes  to  prevent  its  ratification  by  France,  ....  43 
Substitution  of  the  Treaty  of  1845  between  Trance  and  England,  for  those  of 

1831  and  1833.   Debates  in  Parliament  and  in  the  French  Chambers,       .  46 
Ashburton  Treaty,  stipulating  for  separate  African  squadron,  as  a  waiver  of 

the  right  of  search, 49 

Lord  Ashburton's  declaration  in  Parliament  respecting  visitation  and  search,  50 

President's  message  and  debates  on  the  treaty  in  executive  session,     .        .  51 

Sir  Kobert  Peel's  disclaimer  of  having  abandoned  the  right  of  visitation  .        .  55 

Debate  in  the  Senate  on  Sir  Robert  Peel's  speech, 56 

Lord  Aberdeen's  despatch,  reaffirming  the  British  doctrines,  transmitted  to  the 

House  of  Representatives,  with  a  message  from  the  President,  ...  58 
Debate  in  the  House  of  Representatives  on  the  bill  for  carrying  the  treaty  into 

effect, •!  •-•»        .        .        .    -  59 

Debate  in  the  Senate  on  the  same  subject  (Appendix),  .  >  .        .        .        .  199 

Mr.  "Webster's  instructions  to  Mr.  Everett,  in  reply  to  Lord  Aberdeen's  despatch,  61 

Discussion  in  Parliament  on  Mr.  Webster's  instructions,    ....  63 

British  instructions  to  their  cruisers  under  the  Treaty  of  1842,  .  .  .  66 
Reclamations  for  seizure  of  slaves  on  board  of  vessels  driven  into  the  British 

West  Indies, <    .        i  67 

Reclamations  for  seizure  of  vessels  engaged  in  the  American  fisheries,  .  .  69 
Statute  of  1845  for  capturing  Brazilian  vessels  suspected  to  be  engaged  in  the 

slave-trade, ..'.'.  69 

Right  to  arrest  pirates  under  the  law  of  nations,  unconnected  with  claim  of 

visitation  on  account  of  the  slave-trade,    .        .        .        .    "  •.        .        .  71 

No  right  of  visitation  on  the  high  seas  for  fiscal  or  defensive  purposes,       .  73 

Opinion  of  Dr.  Twiss, 74 

Opinions  of  institutional  writers  on  the  right  of  visitation  and  search  — 

Wheaton, .'  .        .75 

Hautefeuille,  Masse,  and  Ortolan,        .        .        .        .        .      '  .        .'^  76 

De  Cussy, »<-•    -i '       .        .        .78 

Phillimore's  attempt  to  reconcile  right  of  visitation  with  international  law,  79 
His  opinion  in  the  Cagliari  case,  .  .  .  .  >.  .  .  .  .80 
Treaties  in  1849  between  Great  Britain  and  other  nations  for  the  suppression 

of  the  slave-trade, 82 

Decisions  under  the  mixed  commissions  and  in  the  Vice-Admiralty  Courts,  .  83 
Interference  of  British  cruisers  with  the  American  squadron  in  seizing  vessels 

under  the  United  States  flag, 84 

French  convention  of  1845  with  England  no  longer  operative,     .        ,;  .     «  86 

Lord  Napier's  rcaffirmance  of  the  claim  of  visiting  American  vessels,      .        .  88 

General  Cass's  reply, \        .    -  88 

The  boarding  and  searching  of  American  vessels  by  British  cruisers  in  the 

Gulf  of  Mexico,       .        .     .  >.r       ....     .        .        .        .    -   .        .  90 

Instructions  to  Mr.  Dallas  as  to  searches  on  the  high  seas  and  in  the  harbor  of 

Sagua  la  Grande,     .        .  .     ".        .        .        .        .'-'.-.  91 

Report  of  the  Committee  of  Foreign  Relations  on  the  stopping  and  examining 

of  American  vessels,        ........        .        .        .  92 


CONTENTS.  Vll 

Debate  on  the  committee's  resolution,  in  the  Senate, 94 

Note  on  the  right  of  visitation,  at  variance  with  the  text,  interpolated  into  the 

late  editions  of  Kent's  Commentaries, 100 

Antecedents  of  Lord  Derby  as  regards  the  United  States,  .        .        .        .  103 

Opinion  of  the  Attorney-General  in  the  Cagliari  case, 105 

First  announcement  in  Parliament  of  the  aggressions  in  the  Gulf  of  Mexico,  105 
Lord  Malmcsbury's  declaration  that  he  admitted  the  international  law  as  laid 

down  by  the  American  Minister  of  Foreign  Affairs,         .        ,.•-,,..  108 

Further  debates  in  Parliament, Ill 

Opinions  of  the  law-officers  of  the  crown  on  the  right  of  search,      .        .        .116 
Announcement  in  the  United  States  of  the  British  recognition  of  Gen.  Cass's 

doctrines, 116 

Mr.  Dallas's  speech  on  the  fourth  of  July, 117 

No  further  sanction  required  for  the  British  renunciation,        .        .        .        .118 

British  suggestion  of  a  conventional  right  of  visitation,       .        .        .        .  119 

Difficulty  of  making  any  treaty  with  England, 120 

Involuntary  trespass  the  only  matter  open  for  consideration,       .        .        .  121 

French  proposition, 122 

Abandonment  of  impressment  no  equivalent  for  visitation,         .        .        .  123 
Original  objections  of  Mr.  Buchanan  and  General  Cass  to  the  Ashburton 

Treaty,    .       '.-      '.        .        .        . 125 

Practical  effect  of  the  treaty  as  regards  the  operations  of  American  cruisers  in 
arresting  our  own  citizens  suspected  of  being  engaged  in  the  slave- 
trade, 126 

Petition  from  Rhode  Island  for  the  withdrawal  of  the  African  squadron,     .  127 

Desirableness  of  colonization  for  free  negroes, 129 

Mr.  Slidell's  resolution  to   abrogate   the  eighth   article  of   the  Ashburton 

Treaty,  and  the  report  thereon, 131 

Mr.  Dallas's  despatch  to  the  same  effect, 132 

French  squadron  maintained  only  to  protect  French  commerce  against  Eng- 
lish cruisers,  .  .  . 133 

Closing  slave-markets  the  only  mode  of  suppressing  the  trade,         .        .        .134 

The  trade  with  Brazils  no  longer  exists, 134 

Great  Britain  might  prevent  the  slave-trade  to  Cuba, 135 

Lord  Palmerston  refused  to  acquiesce  in  the  acquisition  of  Cuba  by  the  United 

States,  or  to  adopt  the  same  rule  with  Spain  as  with  Brazils,    .        .        .137 
Possible  change  of  policy,  under  the  present  ministry,  as  to  the  acquisition  of 

Cuba  by  the  United  States, 137 

Its  annexation  an  effectual  means  to  suppress  the  trade, 140 

The  United  States  have  alone  effectually  suppressed  the  slave-trade  without 

evasion, 141 

American  legislation  on  the  slave-trade, 141 

Judge  Campbell's  charge  on  the  slave-trade  acts, 142 

Secretary  Cobb's  instructions  respecting  African  emigrants,          .        .        .  143 

As  to  the  coolie  trade  (Appendix), 210 

Resolution  of  the  House  of  Representatives  respecting  the  laws  prohibiting 

the  slave-trade, 144 


Vlll  CONTENTS. 

United  States,  for  considerations  of  humanity  alone,  and  to  their  pecuniary 

prejudice,  prohibit  the  trade, .  144 

The  slave-trade  resisted  at  the  South, 145 

Increase  of  slave  population  in  the  United  States, 145 

Their  condition  favorably  contrasted  with  that  of  slaves  elsewhere,  .  .  .146 
The  United  States  not  responsible  for  the  employment,  by  foreigners,  of  ships 

built  in  the  United  States, 147 

The  cause  of  the  emancipation  in  the  British  colonies, 147 

Design  of  Great  Britain  to  extend  emancipation  over  all  America,  .  .  148 
British  apprentice  system  and  decline  of  labor  in  the  West  Indies,  .  .  .150 

Introduction  of  Africans  and  coolies,  .  .  .  ...  .  .  151 

Retrogression  both  of  the  Creole  and  negro  population, 153 

Free  negroes  virtually  reduced  to  slavery,  and  efforts  for  the  introduction  of 

African;  Chinese,  and  coolie  laborers  into  Jamaica,  .  .  .  .  154 
Sufferings  attendant  upon  the  transportation  of  coolies  and  Chinese,  .  .155 

Supply  only  kept  up  by  continued  importations,  .  .  .  .  '  .'•  158 

Loss  to  the  West  Indies  by  emancipation, .158 

Lord  Brougham  and  the  Bishop  of  Oxford  sustain  the  coolie  trade  to  the 

British  possessions, 159 

French  emancipation  the  result  of  the  revolution  of  1848,  .  .  .  .  160 

Disastrous  effects  on  the  colonies,  1 60 

Introduction  of  coolies  and  Africans, 161 

Debates  in  the  House  of  Lords  on  the  French  emigrant  system  .  ' .  .162 

Count  Walewski's  statement  as  to  the  English  assent  to  the  French  scheme,  1 63 

Practical  effects  on  Africa  of  the  French  proceedings, 164 

Case  of  the  Regina  Cceli, 164 

Retorts  of  the  French  press  on  the  British  opposition  to  their  emigration 

scheme,  .  .  '.  .%  .  .  165 

Profits  derived  by  England  in  slavers  and  otherwise  from  the  suppression  of 

the  slave-trade, 166 

Slave-trade  not  confined  to  Africa,  but  extends  to  the  Christians  of  Circassia 

and  Georgia, '  .  .  .167 

The  demand  induced  by  emancipation,  of  the  English  and  French  colonies, 

effectually  prevents  the  suppression  of  the  slave-trade,  .  '.  .  168 
If  free  labor  was  required,  the  British  European  possession  could  abundantly 

supply  it, •'.-  .  168 

Condition  of  American  slaves  compared  with  coolies  and  African  immigrants,  169 
Effect  of  the  abolition  of  slavery  in  the  United  States  on  the  production  of  cot- 
ton and  the  cotton  manufacture, 169 

Discussions  in  the  English  Parliament  on  the  abandonment  of  the  attempt  to 

suppress  the  slave-trade  by  armed  cruisers,  ..  ."  .'  .  .  170 
Position  of  the  United  States  as  to  the  slave-trade  not  analogous  to  that  of 

England  or  France,          .';''..        .        .  .        .        .  174 

Is  the  continuance  of  the  Ashburton  Treaty  justified  by  any  obligation  of  the 

Federal  Government  1  .  ' .  .  1 76 

Debates  of  23d  of  July,  in  the  House  of  Commons,  .  .  .  177 


CONTENTS.  IX 

The  exposition  of  the  Union  and  National  Intelligencer  on  the  Parliamentary 

proceedings, 178 

Debate  of  the  26th  of  July,  in  the  House  of  Lords,  and  Lord  Lyndhurst's  re- 
pudiation of  the  right  of  search,    181 

Lord  Aberdeen's  statement  respecting  the  negotiations  of  1842,    .        .        .  185 

Lord  Malmesbury's  proposed  arrangement, 188 

Comments  of  the  London  Times  and  Post  on  the  abandonment  of  the  British 

claim, 189 

The  Eevue  des  deux  Mondes  on  the  British  concessions,    .        .        .        .  191 

Conclusion, 193 

APPENDIX — A.  Abolition  of  Privateering, 195 

B.  Mr.  Forsyth's  instructions  to  Mr.  Stevenson,  on  the  detain- 

ing and  visiting  American  vessels,        .        .        .        .        197 

C.  Mr.  Everett's  despatch  to  Mr.  Webster,  on  the  appointment 

of  Lord  Ashburton, 198 

D.  Speech  of  the  King  of  the  French,  December,  1841,      .        .199 

E.  Debate  in  the  Senate  on  the  bill  to  carry  into  effect  the  Ash- 

burton  Treaty,  March  2,  1843, 199 

F.  President  Buchanan's  message  as  regards  the  El  Dorado,  .        203 

G.  Rhode  Island  Memorial  for  the  withdrawal  of  the  African 

squadron, 203 

H.  American  policy  with  regard  to  Cuba,  ....  205 

I.  Mr.  Keed,  minister  to  China  —  instructions  to  consuls  respect- 

ipg  the  coolie  trade, 210 

J.  Lord  Aberdeen's  instructions  to  Mr.  Packenham  as  to  the 

abolition  of  slavery  in  the  United  States,  and  Mr.  Cal- 

houn's  answer, 213 

K.  Effect  of  Emancipation  on  the  trade  of  the  British  West 

Indies  with  the  United  States, 216 

L.  The  consumption  of  cotton  in  the  different  countries  of  Europe 

and  in  the  United  States, 217 


VISITATION  AND  SEARCH. 


VISITATION    AND    SEARCH. 


THE  people  of  the  United  States,  averse  to  the  main- 
tenance of  large  military  establishments,  whether  on 
the  ocean  or  on  the  land,  and  having  a  commercial 
marine,  which,  never  inconsiderable,  is  now  the  largest 
in  the  world,  have  always  been  deeply  sensible  of  the 
vital  importance  of  sustaining  unimpaired  their  mari- 
time rights.  Of  the  truth  of  this  assertion  we  have 
ample  evidence  in  the  unanimity  which,  regardless  of 
all  domestic  differences,  Congress  manifested  in  reference 
to  the  late  aggressions  on  our  commerce  in  the  Gulf  of 
Mexico.  Even  sectional  jealousies,  and  those  anti- 
slavery  sentiments  which  have  so  often  menaced  the 
existence  of  the  Union,  did  not  cause  the  ostensible 
object  of  British  interference  to  stifle  the  patriotic 
denunciations,  which  a  disregard  to  the  immunity  of 
our  flag  called  forth  from  every  part  of  the  senate- 
house. 

Coming  into  existence  as  a  nation,  when  the  States 
of  continental  Europe  were  arraying  themselves  against 
the  inordinate  pretensions  of  England,  whose  naval  suc- 
cesses already  augured  such  superiority  as  might  jeopard 
the  enjoyment,  by  the  vessels  of  other  countries,  of  the 
ocean  as  the  common  territory  of  all  nations,  the  Con- 

1 
- 


2  VISITATION   AND    SEARCH. 

gress  of  the  Revolution  promptly  acceded  to  that  dec- 
laration which  has  given  immortality  to  Catharine  of 
Russia.  Our  contemporaneous  treaties  embody  stipula- 
tions for  the  immunity  of  the  flag,  which  originated 
with  or  obtained  the  sanction  of  Franklin  and  Jefferson. 
Though  our  judiciary  has  recognized,  as  evidence  of  the 
law  of  nations,  the  decisions,  which  bound  us,  as  at  one 
time  constituting  a  portion  of  the  British  empire,  it  has 
felt  itself  under  no  obligation  to  receive  as  law  those 
interpolations  into  admiralty  jurisprudence  which  had 
no  other  basis  than  acts  of  parliament  or  orders  of  the 
king  in  council,  and  which,  at  this  day,  are  repudiated 
by  even  English  publicists.  Our  diplomacy,  which,  in 
the  early  days  of  the  republic,  was  confided  to  the  first 
men  of  the  nation,  has  been  untiring  in  sustaining  our 
rights  as  neutrals,  in  which  relation,  except  during  the 
war  of  1812,  we  have,  since  the  acknowledgment  of  our 
independence,  ever  stood  towards  the  powers  of  Europe. 
Indeed,  it  was  outrages  on  our  commerce  that  in- 
duced the  quasi  war  with  France  in  1798  ;  and  similar 
causes,  aggravated  by  the  impressment  of  American  sea- 
men, brought  on  the  war,  which,  comparatively  feeble 
as  we  were,  we  honorably  waged  forty-six  years  ago 
against  the  mistress  of  the  ocean.  For  other  maritime 
spoliations,  including  subsequent  injuries  from  imperial 
France,  we  received  indemnities  even  less  important  as 
pecuniary  compensations  to  individuals,  than  as  acknowl- 
edgments due  to  our  national  honor.  What  we  would 
not  tolerate,  when  our  population  did  not  exceed  one 
quarter  of  the  present  number,  we  will  hardly  pass  by 
unnoticed,  when  our  country  has  as  many  inhabitants 
as  some  of  the  most  powerful  empires,  and  our  resour- 
ces in  other  respects  have  more  than  proportionably 


VISITATION    AND    SEARCH.  O 

increased.  The  recent  offences  are  the  less  tolerable 
from  having  occurred  in  the  Gulf  of  Mexico.  If  it  be 
possible  for  any  power  to  claim  peculiar  rights  there,  as 
England  was  wont  to  do  in  the  seas  adjacent  to  the 
British  isles,  it  would  be  the  United  States. 

The  general  pacification  of  Europe  leaving  us  op- 
posed, single-handed,  to  England,  rendered  it  difficult, 
in  1814,  to  insist  on  the  renunciation  of  the  claim  of 
impressment,  while  experience  has  shown  that  the 
attempt,  in  1842,  permanently  to  waive  between  two 
nations,  having  ships  in  every  sea,  a  question  that  may 
recur  whenever  a  British  cruiser  meets  an  American 
merchantman,  is  wholly  impracticable.  The  losses  to 
which  the  commercial  world  is  constantly  subjected  by 
monetary  panics,  growing  out  of  the  fear  of  hostilities, 
whenever  the  British  government  chooses  to  issue  new 
instructions  to  its  cruisers,  or  they  fall  into  the  hands  of 
officers  disposed  to  obey  them  literally,  render  it  a 
matter  of  primary  importance  that  there  should  be  no 
more  temporary  adjustments.  And  it  happily  appears 
that  the  British  people  are  not  now  disposed,  either  for 
the  purpose  of  accomplishing  the  abolition  of  the  slave- 
trade,  already  rendered,  by  the  substitution  of  nominal 
apprentices  or  "  emigrants  "  to  declared  slaves,  of  little 
practical  consequence  to  Africa,  or  even  of  maintain- 
ing, for  their  own  political  aggrandizement,  a  maritime 
police  over  the  ocean,  to  encounter  the  risk  of  an  inter- 
ruption of  intercourse  with  the  nation  on  which  they 
are  dependent  for  the  material  of  their  most  extended 
manufacture,  and  for  which,  since  the  revolt  in  India, 
even  a  partial  substitute  cannot  be  found. 

The  United  States  have  always  been  more  successful 
in  negotiating  with  the  party  now  in  power  than  with 


4  VISITATION   AND    SEARCH. 

those  who  have  pretended  to  greater  liberality  in  their 
political  creed ;  and  we  do  not  deem  it  unfortunate  that 
this  question  has  been  brought  to  a  practical  discus- 
sion in  the  ministry  of  the  Earl  of  Derby,  instead  of 
that  presided  over  by  Lord  Palmerston.  Nor  can  the 
relations  of  England  to  France,  as  well  as  regards 
European  politics  as  the  particular  subject  of  the  African 
emigration,  be  otherwise  than  favorable  to  an  adjust- 
ment of  all  difficulties  between  us  and  Great  Britain. 

Publicists  consider  the  vessels  of  a  nation  on  the 
high  seas  a  portion  of  its  territory.  This,  of  course, 
excludes  all  maritime  police  and  all  jurisdiction  over 
them  on  the  part  of  any  foreign  State,  and,  so  far  as 
regards  public  ships,  the  rule  admits  of  no  exception. 
But,  in  time  of  war,  what  is  usually  denominated  a  right 
of  visitation  and  search  (droit  de  visit e  or  droit  de  risite  et 
de  recherche)  of  merchant  vessels,  at  least  so  far  as  may 
be  necessary  to  verify  their  nationality  and  neutrality, 
is  conceded  to  the  lawfully  commissioned  cruisers  of  a 
belligerent,  as  essential  to  the  exercise  of  the  right  of 
capturing  enemy's  ships,  contraband  of  war,  and  vessels 
committing  a  breach  of  blockade.  England  has  also 
contended,  when  no  treaty  intervenes,  for  a  right  of 
taking  enemy's  goods  in  neutral  vessels.  In  cases,  there- 
fore, where  the  rule  "  free  ships  free  goods "  does  not 
apply,  a  proportionate  extension  must  be  given  to  the 
claim  in  question.  In  the  late  war  writh  Kussia,  Great 
Britain  united  with  France  in  conceding  immunity  to 
enemy's  property  under  such  circumstances,  while  the 
latter  power  recognized  her  rule  of  considering  neutral 
property  on  board  of  enemy's  ships  as  free  from  cap- 
ture. Other  concessions  were  also  introduced,  which, 
were  it  not  that  Kussia,  against  whom  the  war  was 


VISITATION   AND    SEAKCH.  O 

waged,  had  no  colonial  trade  to  which  the  rule  of  '56 
could  be  applicable,  and  few  merchantmen  to  be  affected, 
by  the  issue  of  letters  of  marque  and  reprisal  to  priva- 
teers, might  have  indicated  an  advance  in  civilization. 

The  modification  of  extreme  belligerent  rights  was 
announced  as  only  applying  to  the  actual  war,  but  it 
was  subsequently  adopted  in  a  declaration  made,  at  the 
congress  of  Paris,  in  April,  1856,  by  the  plenipoten- 
taries  of  Great  Britain,  Austria,  France,  Prussia,  Russia, 
Sardinia,  and  Turkey.  By  that  act,  besides  the  two 
provisions,  that  the  neutral  flag  covers  enemy's  goods 
with  the  exception  of  contraband  of  war,  and  that 
neutral  goods,  with  the  like  exception,  are  not  liable  to 
capture  under  the  enemy's  flag,  to  which  the  treaties 
with  Russia,  Mexico,  and  Naples,  concluded  by  us  during 
the  war,  had  been  confined,  it  was  declared  that  "  block- 
ades, in  order  to  be  binding,  must  be  effective ;  that  is 
to  say,  maintained  by  a  force  sufficient  really  to  pre- 
vent access  to  the  coast  of  the  enemy,"  and  that  "  pri- 
vateering is  and  remains  abolished." 

The  parties  to  the  "  declaration  "  engaged  to  bring  it 
to  the  knowledge  of  the  States  that  had  not  taken  part 
in  the  congress  of  Paris,  and  invite  their  accession ;  and 
it  was  not  to  be  deemed  binding  except  between  those 
which  acceded  to  it.  It  was  agreed  by  the  plenipoten- 
tiaries, and  inserted  in  the  protocol  of  their  proceedings, 
though  not  in  the  instrument  itself,  that  the  "  declara- 
tion "  was  indivisible,  and  that  the  powers  which  signed 
it  or  should  accede  to  it  could  not  thereafter  enter  into 
any  arrangement  in  regard  to  the  application  of  the 
maritime  law  in  time  of  war,  which  did  not  rest  on 
the  four  principles  which  are  the  object  of  the  "  decla- 
ration." This  provision  it  was,  on  the  motion  of  the 

1* 


O  VISITATION   AND    SEARCH. 

Russian  plenipotentiaries,  admitted  could  not  have  any 
retroactive  operation  or  invalidate  any  existing  conven- 
tions, as  it  had  also  been  conceded,  at  the  suggestion  of 
Count  Orloff,  that  it  would  not  be  obligatory  on  the 
signers  of  the  "declaration"  to  maintain  the  principle 
of  the  abolition  of  privateering  against  those  powers 
which  did  not  accede  to  it. 

The  whole  propositions  have,  it  is  understood,  received 
the  sanction  of  most  of  the  secondary  powers  of  Europe 
and  America.  The  definition  as  to  blockade  being  in 
accordance  with  the  rule  of  international  law  as  always 
recognized  by  us,  was  not  open  to  objection ;  but  as  the 
abolition  of  privateering,  to  which  the  United  States 
can  never  assent  while  private  property  remains  sub- 
ject to  capture  by  public  ships,  was  one  of  them,  the 
law  of  nations,  as  heretofore  understood,  must  in  any 
future  war  apply  to  us,  except'  as  regards  those  nations 
with  which  we  had  modified  it  by  previous  treaties. 

However  liberal  the  propositions  of  the  congress  may 
appear  on  their  face,  an  examination  of  the  protocols 
will  show,  that,  while  England  was  apparently  making 
concessions  to  neutrals,  the  same  policy,  directed  to  uni- 
versal maritime  dominion,  which,  as  wTill  be  seen,  under 
the  guise  of  humanity,  has  ever  governed  her  course,  in 
regard  to  the  slave-trade,  was  her  rule  of  conduct.  At 
the  conference  at  which  they  were  adopted,  "  the  Earl 
of  Clarendon  reminded  the  "congress  that  England,  as 
well  as  France,  at  the  commencement  of  the  war,  had 
sought  to  mitigate  its  effects,  and  for  that  purpose  had 
renounced  in  favor  of  neutrals,  during  the  recent  con- 
test, principles  which  she  had  till  then  invariably  main- 
tained. He  added,  that  England  was  disposed  to  re- 
nounce them  definitively,  provided  that  privateering  is 


VISITATION   AND    SEARCH.  7 

equally  abolished  for  ever ;  that  privateering  is  nothing 
else  than  an  organized  and  legalized  piracy ;  that  priva- 
teers are  the  greatest  scourges  of  war;  and  that  our  state 
of  civilization  and  humanity  requires  that  an  end  should 
be  put  to  a  system  which  does  not  belong  to  our  age. 
If  the  whole  congress  assented  to  Count  Walewski's  prop- 
osition, it  should  be  well  understood  that  it  would  not 
be  obligatory,  except  with  regard  to  those  powers  which 
should  accede  to  it,  and  that  it  could  not  be  invoked  by 
the  governments  which  should  refuse  to  adopt  it." l 

The  great  maritime  States  of  the  world  are  the  United 
States,  England,  and  France.  The  former,  while  she  has 
the  largest  mercantile  marine,  possesses  no  navy  bearing 
any  proportion  to  those  of  the  other  two  powers.  The 
obvious  result  of  the  adoption  of  the  naked  proposition 
as  to  privateering,  attempted  to  be  introduced  into  the 
international  code,  without  any  consultation  wTith  us, 
would  be  (unless  the  rule  was  evaded  by  converting  our 
merchantmen  into  public  ships  of  war),  in  the  event  of 
a  contest  with  either  England  or  France,  to  drive  our 
vessels  from  the  ocean  or  subject  them  to  the  capture  of 
the  enemy's  ships  of  war,  while  the  merchantmen  of  the 
other  belligerent  would  only  be  exposed  to  the  compar- 
atively few  public  cruisers  of  the  United  States.  When 
the  abolition  of  privateering  was  discussed,  at  the  period 
of  the  recognition  of  our  independence,  by  the  states- 
men and  philosophers  who  then  represented  our  diplo- 
macy in  Europe,  and  wyhen  it  was  proposed  to  be  includ- 
ed in  the  negotiations  of  1823-4  with  England,  it  was 
always  connected  with  the  immunity  of  private  property 
on  the  ocean.  Indeed,  the  views  of  Franklin,  Jefferson, 

1  Annuaire  des  Deux  Mondes,  1855-6,  p.  939. 


8  "VISITATION   AND    SEARCH. 

and  Adams,  as  incorporated  in  the  treaty  of  1785  with 
Prussia,  went  much  further,  and  provided  against  any  in- 
terference with  industrial  pursuits  either  at  sea  or  on  land.1 
Nor  was  the  British  plenipotentiary,  in  associating,  as 
it  were,  all  the  States  of  Europe  in  the  adoption  of  a 
principle,  which  it  was  supposed  would  place  the  United 
States  in  a  false  position  as  regards  the  other  powers  of 
Christendom,  unapprized  of  the  insuperable  objection 
to  the  adoption  by  them  of  the  "  Paris  declaration,"  in 
the  form  in  which  it  was  presented.  It  had  already 
been  announced  in  one  of  the  annual  messages  of  Presi- 
dent Pierce.2  And  even  when,  in  March,  1854,  in  ad- 
vance of  the  declaration  of  war,  the  suggestion  was 
made  as  to  the  abolition  of  privateering  by  Lord  Clar- 
endon to  Mr.  Buchanan,  our  minister  replied  that  "it 
did  not  seem  to  him  possible,  under  existing  circum- 
stances, for  the  United  States  to  agree  to  the  suppres- 
sion of  privateering,  unless  the  naval  powers  of  the 
world  would  go  one  step  further,  and  consent  that  war 
against  private  property  should  be  abolished  altogether 
upon  the  ocean,  as  it  had  already  been  upon  the  land. 
There  was  nothing  really  different  in  principle  or  moral- 
ity between  the  act  of  a  regular  cruiser  and  that  of  a 
privateer  in  robbing  a  merchant  vessel  upon  the  ocean, 
and  confiscating  the  property  of  private  individuals  on 
board  for  the  benefit  of  the  captor.  Suppose  a  war 
with  Great  Britain :  the  navy  of  Great  Britain  was  vast- 
ly superior  to  that  of  the  United  States  in  the  number 
of  vessels  of  war.  The  only  means  which  we  would 
possess  to  counterbalance,  in  some  degree,  their  far 


1  U.  S.  Stat  at  Large,  Vol.  VIII.  p.  96. 

s  Cong.  Doc.,  President's  Message,  December,  1854. 


VISITATION   AND    SEARCH.  9 

greater  numerical  strength,  would  be  to  convert  our 
merchant  vessels,  cast  out  of  employment  by  the  war, 
into  privateers,  and  endeavor,  by  their  assistance,  to  in- 
flict as  much  injury  on  the  British  as  they  would  be  able 
to  inflict  on  American  commerce." 1 

In  the  debate  in  the  House  of  Lords,  May  22,  1856, 
the  Earl  of  Clarendon,  in  answer  to  the  attack  on  him 
for  having  yielded  the  principle  that  "  free  ships  make 
free  goods,"  defended  his  course  mainly  on  the  ground 
that  the  "  declaration "  must  be  adopted  as  an  en- 
tirety or  not  at  all,  and  that,  if  ike  United  States 
accepted  it,  they  must  acquiesce  in  the  abandonment  of 
privateering,  which  was  to  England  more  than  an  equiv- 
alent for  a  claim  (taking  enemy's  property  in  neutral 
vessels)  that  she  could  not  maintain;  that  privateering 
must  become  more  important  than  heretofore,  as  com- 
merce carried  on  in  sailing  ships  would  be  absolutely  at 
the  mercy  of  a  privateer  moved  by  steam,  however 
small.  The  Earl  of  Harrowby,  in  sustaining  the  minis- 
try, said  that  England  had  suffered  more  injury  from 
privateering  than  she  could  inflict,  and  that  the  United 
States  would  derive  no  benefit  from  the  treaty,  if  they 
did  not  agree  to  abandon  it. 

On  the  other  hand,  it  is  not  uninteresting  to  notice 
that  the  opponents  of  the  then  ministry,  while  earnestly 
contending  against  immunity  to  enemy's  goods  as  cal- 
culated, as  between  France  and  England,  to  operate  alto- 
gether to  the  benefit  of  the  former,  also  urged  the  con- 
sequences of  the  adoption  of  the  "  declaration,"  as  affect- 
ing the  relations  of  the  latter  with  the  United  States.  The 
Earl  of  Hardwicke  said :  "  France  would  man  her  navy 

1  Cong.  Doc.  33  Con".  1  S.  H.  R.  Ex.  Doc.  No.  103. 


10  VISITATION   AND    SEARCH. 

from  her  merchantmen,  looking  to  neutral  carriers, 
while,  as  America  never  would  abandon  the  right  of 
privateering,  the  course  we  are  now  taking  would  give 
direct  offence  to  one  of  the  greatest  commercial  nations 
of  the  world."  The  Earl  of  Derby  admitted  that  there 
were  very  weighty  reasons  in  the  late  war,  when  France 
and  England  were  allies,  for  waiving  the  exercise  of  the 
right  of  taking  enemy's  goods  under  neutral  flags,  but 
that  to  give  it  up  permanently  was  an  abandonment  of 
British  naval  superiority.  Under  the  rule,  as  previously 
contended  for  by  .England,  "  in  case  of  war  against 
France,  you  could  prevent  her  sending  a  single  bale  of 
cotton  to  sea.  Now,  she  will  make  her  merchantmen 
vessels  of  war,  and  have  seamen  for  them,  by  sending 
away  every  thing  under  neutral  flags.  And,  as  there  is 
the  highest  authority  for  believing  that  America  will  not 
give  up  privateering,  yon  direct  your  threats  exclusively 
at  her,  because  you  say  that  the  limited  advantages  which 
are  given  to  neutrals  shall  only  be  shared  by  those  who 
adhere  to  this  declaration  as  an  entirety.  You  make 
the  hostility  of  America  more  pointed  by  maintaining 
against  her  the  right  of  search,  whilst  the  maritime  law 
is  relaxed  as  to  others." l 

The  American  government,  it  is  well  known,  offered, 
through  Mr.  Marcy,  to  accept  the  whole  "  declaration," 
in  case  the  clause  abolishing  privateering  should  be 
amended,  by  adding  "  that  the  private  property  of  the 
subjects  or  citizens  of  a  belligerent  on  the  high  seas 
shall  be  exempted  from  seizure  by  public  armed  vessels 
of  the  other  belligerent,  except  it  be  contraband." 

The  counter  proposition  was  sustained  in  a  most  able 

1  Hansard's  Parl.  Deb.  N.  s.  Vol.  CXLH.  p.  482. 


VISITATION   AND    SEARCH.  11 

note  from  the  American  Secretary  of  State  to  the  Count 
de  Sartiges,  under  date  of  July  28,  1856.1  It  has,  how- 
ever, been  made  a  question,  whether  even  such  an 
arrangement  as  was  proposed  by  us  would  not  have 
subjected  the  United  States  to  disproportionate  sacri- 
fices. We  neither  maintain  large  standing  armies  nor 
permanent  navies.  On  land  we  resort  to  volunteers, 
and  we  have  been  in  the  habit  of  regarding  our  priva- 
teersmen  as  the  "  militia  of  the  ocean."  In  a  document 
emanating  from  the  present  House  of  Representatives,  it 
is  said  that  there  were  fifteen  thousand  men  employed 
in  the  private  armed  service  during  the  last  war  with 
England.  "  That  war,"  it  is  added,  "  was  brought  to  a 
speedy  close  by  the  pressure  of  public  sentiment  pre- 
vailing throughout  Great  Britain.  The  occasion  of  this 
sentiment  wTas  that  American  privateers  were  rapidly 
destroying  her  commerce,  and  affecting,  directly  and  in- 
directly, every  branch  of  business  enterprise."  2 

At  all  events,  it  is  to  be  hoped,  that,  if  our  govern- 
ment should  enter  into  further  negotiations  on  this  sub- 
ject, no  convention  will  be  concluded  that  will  not  reach 
the  whole  evil  arising  from  a  claim  of  the  right  of  search, 
and  that  the  entire  immunity  of  the  neutral  flag,  beyond 
ascertaining  its  nationality,  will  be  established.  The 
admission  that  the  flag  covers  enemy's  goods  would 
effect  that  object,  were  it  not  for  the  exception  of  con- 
traband of  war.  Nor  does  there  appear  to  be  any  ad- 
vantage to  the  belligerent,  in  the  continuance  of  the 
rule  of  contraband,  commensurate  with  the  injuries 
which  it  must  inevitably  cause  to  the  neutral  in  the 


1  Cong.  Doc.,  Pres.  Message,  Aug.  12,  1856. 

1  Report  of  the  Committee  on  Naval  Affairs,  May  4,  1858. 


12  VISITATION   AND    SEARCH. 

detention  of  his  ships  and  the  interruption  of  his  trade, 
and  from  the  collisions  between  neutrals  and  belligerents, 
to  which  the  exercise  of  the  right  of  search  must  give 
rise.  As  destination  to  an  enemy's  port  is  an  essential 
point  in  a  question  of  contraband,  in  all  cases  where 
the  rule  is  of  any  practical  importance  to  a  belligerent, 
the  law  of  blockade  also  intervenes.1 

This  matter  seems  to  have  been  fully  appreciated  by 
those  who  opposed,  in  parliament,  the  new  maritime 
code.  Lord  Colchester  said,  "  contraband  of  war  was 
expressly  excepted  from  the  arrangement,  and  how 
could  belligerents  know  whether  a  neutral  vessel  had 
contraband  on  board,  without  stopping  and  searching 
her?"  The  Earl  of  Derby  remarked,  "You  maintain  the 
principle  that  neutrals  may  be  searched  for  contraband 
of  war,  and  you  thereby  admit  the  principle  of  the  vio- 
lation of  the  neutral  flag,  and  you  continue  the  danger 
and  inconvenience  which  result  to  merchantmen  from 
being  overhauled  at  sea.  If  you  grant  one  principle 
you  must  grant  another,  and  give  entire  immunity  to 
private  property." 2 

Abolish  contraband,  and  we  should  remove  from  the 
belligerents  all  excuse  for  violating  that  nationality 
which,  in  war  as  well  as  in  peace,  should  attach  to 
every  ship  as  a  portion  of  the  country  to  which  it  be- 
longs. Such  an  arrangement  would  prevent  forever  an 
abuse,  against  which  the  negotiations  of  seventy  years 
have  been  unable  to  provide,  and  which,  notwithstand- 
ing the  able  argument  presented  by  Mr.  Webster  to 
Lord  Ashburton,  is  still  as  open  to  discussion  as  ever. 


1  Wheaton's  Elements,  Lawrence's  Ed.  p.  572,  note. 
*  Hansard's  Debates,  ut  supra,  p.  522. 


VISITATION   AND    SEARCH.  13 

It  will  be  remembered  that  it  was  never  claimed 
that  the  officer  of  a  British  man-of-war  could  enter  a 
neutral  vessel  for  the  purpose  of  searching  for  seamen. 
In  the  declaration  of  the  Prince  Kegent  in  January, 
1813,  in  reference  to  the  causes  of  the  American  war,  it 
is  said :  "  His  Koyal  Highness  can  never  admit,  that,  in 
the  exercise  of  the  undoubted  and  hitherto  undisputed 
right  of  searching  neutral  merchant  vessels  in  time  of 
war,  the  impressment  of  British  seamen,  when  found 
therein,  can  be  deemed  any  violation  of  a  neutral  flag. 
Neither  can  he  admit  that  the  taking  such  seamen  from 
on  board  such  vessels  can  be  considered  by  any  neu- 
tral State  as  a  hostile  measure,  or  a  justifiable  cause  of 
war."  This  document,  originating  from  the  highest 
source,  is  here  quoted,  not  only  for  the  purpose  of 
showing  that  with  the  extinction  of  the  right  of  search 
the  apology  for  impressment  would  cease,  but  in  order 
to  keep  in  view  the  nature  of  those  British  pretensions 
against  which  it  becomes  us  incessantly  to  guard. 

We  wrill  not  discuss  the  doctrine  of  indefeasible  alle- 
giance, which  England  herself  would  seem,  from  her 
liberal  Naturalization  Act  of  1844,  no  longer  to  regard 
as  essential,  but  our  view  of  British  pretensions  and  of 
British  morals  might  be  imperfect,  without  the  citation 
of  a  paragraph  from  this  extraordinary  State  paper, 
showing  that  native  born  Americans  were  confessedly 
included,  as  unfortunately  was  but  too  well  authenti- 
cated, in  the  comprehensive  system  of  man-stealing 
sanctioned  by  royal  authority. 

"  If  a  similarity  of  language  and  manners,"  says  the 
Prince  Regent,  "  may  make  the  exercise  of  this  right 
more  liable  to  partial  mistakes,  and  occasional  abuse, 
when  practised  towards  vessels  of  the  United  States,  the 


14  VISITATION   AND    SEARCH. 

same  circumstances  make  it  also  a  right,  with  the  exer- 
cise of  which,  in  regard  to  such  vessels,  it  is  more  diffi- 
cult to  dispense." ] 

The  disregard  of  our  sovereignty  by  entering,  as  it 
were,  into  our  territory,  and  kidnapping  our  citizens,  at 
the  caprice  of  any  British  midshipman,  not  to  make 
them  merely  ordinary  slaves,  but  to  expose  their  lives 
in  lighting  for  those  who  had  no  claim  on  their  allegi- 
ance, and  in  some  cases  against  their  own  country  (for 
there  were  many  impressed  American  seamen  in  the 
British  navy  during  the  war  of  1812),  is  thus  made 
more  flagrant  by  the  bold  avowal  of  a  fraudulent  per- 
version of  a  neutral  concession. 

It  may  also  be  noticed  in  this  connection,  that,  as  in 
the  analogous  case  of  the  search  for  slavers,  the  intoler- 
able inconveniences  arising  from  its  unauthorized  exer- 
cise were  used  to  extort  the  admission  of  a  search  for 
seamen  under  mitigated  circumstances.  The  proposition 
for  a  modified  right  is  alluded  to  in  the  following  in- 
structions of  Mr.  Secretary  Monroe  to  the  plenipotentia- 
ries at  Ghent.  "  It  has  been  suggested  as  an  expedient 
mode,  for  the  adjustment  of  this  controversy,  that  British 
cruisers  should  have  a  right  to  search  our  vessels  for 
British  seamen ;  but  that  the  commanders  thereof  should 
be  subjected  to  penalties  in  case  they  made  mistakes  and 
took  from,  them  American  citizens.  By  this  the  British 
government  wTould  acquire  the  right  of  search  for  sea- 
men, with  that  of  impressing  from  our  vessels  the  sub* 
jects  of  all  other  powers.  It  will  not  escape  your  at- 
tention, that,  by  admitting  the  right,  in  any  case,  we  give 
up  the  principle,  and  leave  the  door  open  to  every  kind 
of  abuse.  The  same  objection  is  applicable  to  any,  and 

1  Annual  Register,  1813,  p.  339. 


VISITATION   AND    SEARCH.  15 

every  other  arrangement,  which  withholds  the  respect 
due  to  our  flag,  by  not  allowing  it  to  protect  the  crew 
sailing  under  it."1 

With  the  illustration  before  us  of  the  abuses  of  which 
the  exercise  of  the  assumed  right  of  search  is  susceptible, 
it  might  well  become  all  nations  that  regard  their  inde- 
pendence to  inquire  with  Hautefeuille  whether,  even  as 
a  belligerent  right,  it  can  be  sustained  at  all,  on  principle. 
That  most  able  expounder  of  the  rights  and  duties  of 
neutrals,  who  does  not  confine  his  investigation  to  the 
practice  of  nations  nor  to  the  opinions  of  previous  insti- 
tutional writers,  is  unwilling  to  extend  the  droit  de  visits 
beyond  a  verification  of  the  nationality  of  the  ship,  and, 
when  bound  to  an  enemy's  port,  the  nature  of  the  cargo, 
with  reference  to  contraband,  including  (in  the  case  of 
those  who  reject,  contrary  to  what  he  deems  the  correct 
rule,  the  principle  that  the  flag  covers  the  merchandise) 
the  nationality  of  the  cargo.  He  distinguishes  between 
visite,  which  by  other  French  commentators  is  deemed 
equivalent  to  the  English  visitation  and  search,  and  re- 
cherche (search),  which  he  treats  under  a  distinct  head. 
The  former  he  considers  a  belligerent  right,  and  the  lat- 
ter the  exercise  of  a  jurisdictional  act  of  sovereignty. 
As  all  the  pretence  which  a  belligerent  can  have  to  in- 
terfere with  the  unrestricted  use  of  the  ocean  by  neu- 
trals arises  from  considerations  of  self-defence,  of  the 
right  to  prevent  acts  which,  in  their  result,  may  enure 
to  the  benefit  of  the  enemy,  he  contends  that  this  is  sat- 
isfied when  the  regularity  of  the  papers  relating  to  the 
ship  and  cargo  is  ascertained.  He  denies  the  right  of 
making  inquisitorial  searches  by  opening  the  hatchways, 

1  Wait's  American  State  Papers,  Vol.  IX.  p.  344. 


16  VISITATION   AND    SEARCH. 

and  interrogating  the  crew  with  a  view  of  discrediting 
the  official  papers.  Much  less  does  he  admit  of  the 
seizure  on  suspicion  of  the  vessel,  and  treating  it  as  an 
enemy's  ship,  till  the  tribunal  of  the  belligerent  shall 
otherwise  decide.1 

But  whatever  may  be  the  law  of  nations  as  to  the 
extent  of  the  conflicting  rights  of  belligerents  and  neu- 
trals, no  ground  on  wThich  it  has  been  attempted  to 
justify  the  detention  of  merchant  vessels  by  ships  of 
war,  at  sea,  is  applicable  to  a  time  of  peace.  It  may  be 
unhesitatingly  asserted  as  an  historical  fact,  that,  before 
the  general  pacification  of  Europe,  in  1814-15,  not  only 
was  no  claim  of  this  nature  ever  made  as  of  right  but 
it  had  never  been  asked  to  be  conceded  by  one  power 
to  another  as  a  matter  of  conventional  arrangement. 
Visitation  and  search  in  peace,  by  the  public  ships  of  one 
country  of  the  merchant  vessels  of  another,  originated 
with  Great  Britain,  and  grew  out  of  a  policy  which  was 
intended  to  perpetuate  that  maritime  police  which  her 
great  navy  had,  except  when  occasionally  thwarted  by 
American  enterprise  and'  bravery,  exclusively  exercised 
over  the  ocean  during  the  long  wars  growing  out  of  the 
first  French  Revolution. 

At  the  congress  of  Vienna,  circumstances  were  pecul- 
iarly favorable  to  England.  In  the  contest  in  which  the 
States  of  Europe  had  just  been  embarked,  it  was  against 
the  country  of  Napoleon,  who  had  absorbed  their  terri- 
tories within  his  mighty  empire  or  held  them  annexed 
as  dependent  principalities,  that  their  jealousy  was 
directed.  They  had  no  apprehensions  of  England,  no 
widely  extended  commerce  to  be  affected  by  that  mari- 

1  Hautefeuille.  —  Droits  des  Nations  Neutres,  tit  xL  xii. 


VISITATION   AND    SEARCH,  17 

time  superiority,  which  had,  indeed,  enabled  her  to 
supply  the  very  largesses  which  had  so  essentially  con- 
tributed to  the  success  of  the  coalition.  The  United 
States,  of  course,  had  no  part  in  those  proceedings,  and 
it  might  well  have  been  supposed  that  France,  the  only 
European  State  that  could  have  contemplated  a  mari- 
time rivalry  with  England,  was,  as  a  conquered  country, 
in  no  position  to  counteract  British  influence.  It  was, 
moreover,  the  good  fortune  of  England  to  be  able  to 
mask  her  ambition  under  the  guise  of  humanity.  From 
being  not  only  the  importer  of  African  slaves  to  her  own 
colonial  possessions,  but  the  privileged  carrier  for  other 
nations,  she  suddenly  learned  that  the  traffic  was  a  vio- 
lation of  justice  and  humanity,  and,  like  all  new  converts, 
she  had  no  commiseration  for  those  who  did  not  at  once 
adopt  her  views,  and  repudiate  the  opinions,  which,  how- 
ever erroneous,  from  the  time  of  the  virtuous  Las  Casas, 
had  been  entertained  alike  by  ecclesiastics  and  statesmen. 
Already,  while  the  wars  were  still  waging,  had  England 
applied  to  the  ships  of  other  countries  her  newly  adopted 
principles  in  relation  to  the  slave-trade.  In  1807,  the 
American  ship  Amadie,1  employed  in  carrying  slaves 
from  the  coast  of  Africa  to  a  Spanish  colony,  was  con- 
demned by  the  Lords  of  Appeals  in  prize  causes,  because, 
the  British  legislature  having  abolished  the  slave-trade 
as  contrary  to  the  principles  of  justice  and  humanity,  it 
was  incumbent  on  the  claimant  to  show  that  it  was 
authorized  by  the  laws  of  his  own  country.  And,  in 
conformity  with  this  precedent,  Lord  Stowell  in  1811 
condemned  another  American  vessel,  The  Fortuna,2 


1  Acton's  Admiralty  Reports,  Vol.  I.  p.  240. 

2  Dodson's  Admiralty  Reports,  Vol.  L  p.  8-1. 

2* 


18  VISITATION  AND    SEARCH. 

while  he  restored  to  the  Swedish  owner  The  Diana,1  on 
the  ground  that  Sweden  had  not  then  prohibited  the 
trade  by  law  or  convention,  and  still  continued  to  toler- 
ate it  in  practice. 

It  is  difficult  to  sustain  the  foregoing  condemnations 
on  any  recognized  principle.  The  reasoning  of  the 
courts  is  somewhat  of  the  same  character  with  the  Prince 
Regent's  argument,  justifying  the  perversion  of  a  bellig- 
erent right  to  the  enforcement  of  a  municipal  law  for 
a  purpose  for  which  it  was  never  conceded.  These 
vessels  were  entered  and  seized  on  the  belligerent  claim 
of  visitation  and  search,  and  were  thus  brought  within 
the  jurisdiction  of  a  prize  court,  while  their  neutrality, 
the  only  legitimate  matter  of  inquiry,  was  recognized  in 
a  way  confessedly  to  entitle  the  owners  to  restitution. 
The  judge,  assuming  the  office  of  a  general  custos  monim, 
decided,  that,  because  it  had  not  been  affirmatively  proved 
that  they  were  engaged  in  a  trade  authorized  by  the 
laws  of  the  United  States,  they  should  be  condemned. 
Whether  the  views  of  Sir  William  Grant,  who  pronounced 
the  opinion  of  the  Court  of  Appeals,  were  in  anywise 
influenced  by  the  fact  that  the  neutral  claimants  were 
Americans,  might  be  a  matter  of  curious  speculation.  It 
may  be  remarked,  that  the  decrees  of  condemnation 
were  rendered  contemporaneously  with  those  numerous 
edicts,  known  as  Orders  in  Council,  issued  against  our 
commerce,  which  the  courts,  as  well  as  institutional 
writers  of  England,  now  admit  to  have  been  repugnant 
to  international  law. 

There  was  no  delay  on  the  part  of  England  in  her 
efforts  to  inaugurate  her  system  of  a  perpetual  maritime 

1  Dodson'3  Admiralty  Reports,  Vol.  I.  p.  95. 


VISITATION  AND    SEARCH.  19 

police.  The  Treaty  of  Paris,  by  one  of  the  separate  arti- 
cles of  which  France  engaged  to  unite  her  efforts  with 
Gre.at  Britain,  at  a  future  congress,  to  cause  all  the 
powers  of  Christendom  to  proclaim  the  abolition  of  the 
slave-trade,  was  signed  on  the  30th  of  May,  1814.  On 
the  6th  of  August,  in  advance  of  the  congress  of  Vienna, 
Lord  Castlereagh  instructed  the  Duke  of  Wellington, 
then  ambassador  to  Paris,  that  "  a  second  regulation, 
highly  important  to  prevail  on  France  to  accede  to,  is, 
a  reciprocal  permission  to  our  respective  cruisers,  within 
certain  latitudes,  to  visit  the  merchant  ships  of  the  other 
powers,  and  if  found  with  slaves  on  board,  in  contraven- 
tion of  the  law  of  their  particular  state,  to  carry  or  send 
them  in  for  adjudication."  The  Duke  of  Wellington 
accordingly  addressed  the  Prince  of  Benevento  (Talley- 
rand) on  the  subject;  but  he  writes,  on  the  5th  of 
November,  in  reference  to  the  proposition,  "  that  it  was 
so  disagreeable  to  the  government,  and  that  (he)  had 
seen  in  different  publications  that  it  was  likely  to  be  so 
much  so  to  the  nation,  that  there  was  no  chance  of  suc- 
ceeding in  getting  it  adopted." 

Nor  was  England  more  fortunate  in  her  attempt  to 
obtain  the  cooperation  of  Portugal,  so  long  her  depend- 
ent ally.  As  we  learn  from  a  protocol  of  a  special  con- 
ference at  Vienna  on  the  28th  of  January,  1815,  Lord 
Castlereagh  having  suggested,  as  the  surest  mode  of 
putting  an  end  to  the  traffic,  the  exercise  of  a  police 
against  those  vessels  that  should  engage  in  the  trade, 
Prince  Talleyrand  asked  the  British  plenipotentiary  to 
define  the  meaning  of  the  term.  Lord  Castlereagh  as- 
sured him  that  he  meant  such  a  police  as  every  govern- 
ment exercised  by  virtue  of  its  own  sovereignty,  or  of 
special  treaties  with  other  powers.  Thereupon  Prince 


20  VISITATION   AND    SEARCH. 

Talleyrand  and  the  Count  Palmella  (Portuguese  Minis- 
ter) said  that  they  did  not  recognize  the  exercise  of  any 
maritime  police,  except  that  which  each  power  exercises 
for  itself,  over  its  own  vessels  (qiCils  riadmettoient  en  fait 
de  police  maritime  que  cette  que  chaque  puissance  excerce  sur 
ses  propres  Mtimcns}. 

Another  project  was  brought  forward  at  Vienna  with 
as  little  success.  England  endeavored  to  make  the 
abolition  of  the  slave-trade  as  subservient  to  her  mate- 
rial interests  as  the  maritime  police  would  have  been 
to  her  political  power.  She  proposed  the  prohibition 
of  the  importation,  into  the  dominions  of  the  powers 
represented  in  the  congress,  of  colonial  produce,  the 
growth  of  any  colony  where  the  slave-trade  should  still 
continue  to  be  tolerated,  and  that  they  should  only 
admit  the  productions  of  the  colonies  where  the  trade 
was  unlawful,  and  of  "  those  vast  regions  of  the  globe 
furnishing  the  same  productions  by  the  labor  of  their 
own  inhabitants." J  The  British  Indies  were  of  course 
here  referred  to.  How  far  Lord  Castlereagh  was  justi- 
fied in  declaring  of  them,  by  way  of  contrast  to  coun- 
tries cultivated  by  African  labor,  that  their  interests 
conformed  to  the  u  principles  of  humanity  and  religion," 
may  be  best  determined  by  the  fact  that  a  cardinal 
principle  of  the  English  policy  in  India  has  ever  been  to 
interdict  the  propagation  of  the  Christian  religion,  and 
that  the  conquerors  and  conquered  are  now  vying 
with  each  other  in  the  infliction  of  barbarities,  scarcely 
known  to  history  since  the  Spanish  invasion  of  the 
American  continent 


1  Schoell  —  Histoire  des  Traite's,  torn.  xi.  p.  188. 


VISITATION   AND    SEARCH.  21 

The  only  general  result  of  these  negotiations  was  a 
declaration,  bearing  date  8th  of  February,  1815,  of 
adherence  by  the  congress  to  the  additional  article  of 
the  treaty  of  Paris  between  England  and  France,  de- 
nouncing the  trade  as  "repugnant  to  the  principles  of 
humanity  and  of  universal  morality"  but  leaving  the  period 
for  its  abolition  a  subject  of  negotiation  between  the 
several  powers.1 

Two  treaties  were  signed  at  Vienna  between  Eng- 
land and  Portugal,  but  they  cannot  be  considered  as  hav- 
ing materially  advanced  the  ostensible  cause,  in  which 
the  former  was  so  warmly  enlisted,  much  less  did  they 
favor  her  scheme  of  a  maritime  police.  On  the  contra- 
ry, one  of  them  made  provision  for  the  ships  of  Portu- 
gal, which  had  been  detained  and  condemned  by  Great 
Britain  on  the  alleged  ground  of  being  engaged  in  an 
illicit  traffic  in  slaves.  The  other,  having  special  refer- 
ence to  the  slave-trade  and  providing  for  its  partial 
abolition,  in  consideration  of  the  release  of  a  debt  due 
from  Portugal,  was  scarcely  in  advance  of  the  treaty  of 
Rio  de  Janeiro  of  1810,  the  first  conventional  arrange- 
ment entered  into  by  England  on  that  subject,  and 
which  was  then  annulled.2 

The  treaty  of  September,  1817,  with  Spain,  and  the 
operation  of  which  was  extended  in  1822  and  in  1835, 
inaugurated,  though  the  trade  was  still  partially  allowed 
till  1820,  the  general  system  of  reciprocal  search,  which 
had  been  yielded  by  Portugal  the  preceding  July,  as  to 
the  trade  interdicted  by  her  north  of  the  equator.  In 


1  Flassan  —  Histoire  du  Congrcs  de  Vienne,  torn.  iii.  p.  286. 

2  Martens  —  Recueil  des  Traites,  S.  torn.  vi.  pp.  93-96. 


22  VISITATION   AND    SEARCH. 

the  discussions  in  parliament  on  the  Spanish  treaty, 
"  the  introduction  of  the  right  of  search,  and  the  bring- 
ing in  for  condemnation,  in  time  of  peace,  was  declared  to 
be  a  precedent  of  the  utmost  importance."  No  one 
then  contended  for  any  such  power,  independent  of 
treaty. 

It  was  soon  after  the  Spanish  convention  was  con- 
cluded (Dec.  15,  1817),  that  Lord  Stowell  (Sir  William 
Scott),  without  adverting  to  the  previous  adjudications, 
delivered  his  judgment  in  the  case  of  the  French  vessel 
The  Louis,  captured  llth  March,  1816,  and  condemned, 
at  Sierra  Leone,  because  the  brig,  being  engaged  in  the 
slave-trade  contrary  to  the  laws  of  France  and  the  law 
of  nations,  could  derive  no  protection  from  the  French, 
or  any  other  flag,  and  because  she  had  resisted  the  Brit- 
ish cruiser,  and  piratically  killed  eight  of  her  men,  and 
had  resisted  search. 

Lord  Stowell  decided  that  no  British  act  of  parlia- 
ment, or  commission  founded  on  it,  if  inconsistent  with 
the  law  of  nations,  can  affect  the  rights  or  interests  of 
foreigners,  that  the  right  of  visitation  and  search  on  the 
high  seas  does  not  exist  in  peace,  that  trading  in  slaves 
is  not  piracy  nor  a  crime  by  the  universal  law  of 
nations.  He  says,  referring  to  the  declaration  at  the 
congress  of  Vienna,  that,  "  great  as  the  reverence  due 
to  such  authorities  may  be,  they  cannot  be  admitted 
to  have  the  force  of  overruling-  the  established  course  of 

o 

the  general  law  of  nations." 

He  decided  further  that  a  nation  "  has  a  right  to  see 
that  its  own  vessels  are  duly  navigated,  but  it  has  no 
right  in  consequence  to  visit  and  search  all  the  apparent 
vessels  of  other  countries  on  the  high  seas,  in  order  to 
institute  an  inquiry  whether  they  are  not  in  truth  Brit- 


VISITATION   AND    SEARCH.  23 

ish  vessels  violating  British  laws,"  —  that  the  penalties 
imposed  by  a  French  law  must  be  enforced,  not  in  an 
English,  but  in  a  French,  court. 

He  adds  what,  if  not  an  authoritative  portion  of  his 
opinion,  coming  from  such  a  source  as  Lord  Stowell,  is 
entitled  to  no  slight  attention  on  the  part  of  those  who 

direct  the  international  relations  of  England,  while  it 

*  * 

renders .  clearer,  if  possible,  his  views  as  to  the  strictly 
belligerent  character  of  a  right  of  visitation  and  search. 
"  If,"  says  he,  "  I  felt  it  necessary  to  press  the  considera- 
tion further,  it  would  be  by  stating  the  gigantic  mischiefs 
which  such  a  claim  is  likely  to  produce.  It  is  no  secret, 
particularly  in  this  place,  that  the  right  of  search,  in 
time  of  war,  though  unquestionable,  is  not  submitted  to 
without  complaints  broad  and  bitter,  in  spite  of  all  the 
modifications  that  can  be  applied  to  it.  If  this  right  of 
war  is  imported  into  peace  by  convention,  it  will  be  for 
the  prudence  of  states  to  regulate  by  that  convention 
the  exercise  of  the  rights  with  all  the  softenings  of 
which  it  is  capable."  After  questioning  whether  it  can 
even  then  be  made  tolerable,  it  being,  as  he  said,  "  the 
exercise  of  a  right  which  pro  tanto  converts  a  state  of 
peace  into  a  state  of  war,"  Lord  Stowell  proceeds : ' 
"But  if  it  be  assumed  by  force  and  left  at  large  to 
operate  reciprocally  upon  the  ships  of  every  state  (for  it 
must  be  a  right  of  All  against  All)  without  any  other 
limits  as  to  time,  place,  or  mode  of  inquiry,  than  such  as 
the  prudence  of  particular  states  or  their  individual  sub- 
jects may  impose,  I  leave  the  tragedy  contained  in  this 
case  to  illustrate  the  effects  that  are  likely  to  arise  in 
the  very  first  stages  of  the  process,  without  adding  to 
the  account,  what  must  be  considered  as  a  most  awful 


24  VISITATION  AND    SEARCH. 

part  of  it,  the  perpetual  irritation  and  universal  hostility 
which  are  likely  to  ensue." ] 

It  does  not  detract  from  the  force  of  Lord  StowelPs 
argument,  that  he  might,  on  the  authority  of  The  Diana, 
have  decreed  restitution,  without  deciding  the  great 
principle  which  he  so  fully  discussed.  He  does,  indeed, 
come  to  the  conclusion,  that,  at  the  date  of  her  capture, 
there  was  no  French  ordinance  for  abolishing  the  traffic, 
he  not  deeming  the  recital  to  that  effect  in  the  treaty 
of  November  20,  1815,  between  England  and  France, 
to  be  sustained  by  the  documents  before  him. 

Nor  was  The  Louis  an  isolated  case  of  restitution  to 
foreign  owners  of  ships  alleged  to  be  engaged  in  the 
slave-trade.  Several  decrees  were  made  by  the  Court 
of  Admiralty  in  favor  of  Spaniards,  in  regard  to  vessels 
illegally  captured  and  detained  on  account  of  their  par- 
ticipation in  that  traffic,  and  the  compensation  for  their 
indemnity  is  included  in  the  £400,000  stipulated  in  the 
treaty  of  September,  1817,  to  be  paid  by  England  to 
Spain,  as  the  price  of  her  assent  to  the  abolition  of  the 
trade. 

The  principles  settled  in  The  Louis  were  reaffirmed  by 
Lord  Stowell,  in  1824,  in  the  case  of  The  San  Juan  Nepo- 
muceno,  captured  in  December,  1817,  and  consequently 
after  the  treaty,  and  condemned  at  Sierra  Leone.2 

The  English  government,  which  had,  in  July,  1816, 
announced  by  a  circular  to  its  naval  commanders,  that 
the  right  of  search,  being  a  belligerent  right,  had  ceased 
with  the  war,  again  attempted  in  vain,  in  1818,  to  pro- 
cure its  concession  from  France.  In  May  of  that  year, 


1  Doclson's  Admiralty  Reports,  Vol.  II.  p.  210. 
*  Haggard's  Admiralty  Reports,  Vol.  I.  p.  267. 


VISITATION   AND    SEARCH.  25 

a  treaty  of  that  nature  was  concluded  with  the  Nether- 
lands,1 and,  at  the  congress  of  Aix  la  Chapelle,  in 
November,  the  subject  was  brought  anew  to  the  con- 
sideration of  the  great  powers  ;  but  Austria,  Russia,  and 
Prussia  then  refused  either  to  allow  the  reciprocal  right 
of  search,  applicable  to  all  nations  which  had  prohibited 
the  slave-trade,  or  to  proclaim  the  traffic  piracy  under 
the  law  of  nations.  As  at  Vienna,  the  congress  confined 
itself  to  a  general  declaration  respecting  the  odious 
character  of  the  commerce. 

Nor  was  more  effected  at  Yerona  in  1822.  The 
French  government  explicitly  rejected  both  the  prop- 
ositions,—  to  make  the  trade  piracy,  and  to  allow  a 
right  of  search.  As  to  the  latter  point,  Mr.  Chateau- 
briand declared  his  government  could  never  consent, 
and  that  any  attempt  to  exercise  it  between  the  French 
and  English  would  be  attended  with  the  most  fatal  con- 
sequences. Indeed,  the  government  of  the  restoration 
seemed  fully  aware  that  the  offer  of  reciprocity  was 
entirely  illusory,  and  that  the  system  could  only  operate 
for  the  aggrandizement  of  England. 

The  Treaty  of  Ghent  of  1814,  by  which  peace  was 
restored  between  the  United  States  and  Great  Britain, 
and  which  pledged  both  parties  to  use  their  best  endeav- 
ors for  the  abolition  of  the  slave-trade,  afforded  to  the 
latter  an  opportunity  to  bring  us  within  the  operation 
of  her  maritime  police.  To  propositions,  made  to  our 
government,  a  short  time  before  the  meeting  at  Aix  la 
Chapelle,  of  the  same  character  as  those  submitted  to 
the  congress,  Mr.  Adams,  Secretary  of  State,  under  date 
of  November  2,  1818,  replied:  "That  the  admission  of 


1  Further  treaties  were  made  with  the  Netherlands  in  1822,  1823,  and  1837. 

3 


26  VISITATION   AND    SEARCH. 

a  right  in  the  officers  of  foreign  ships  of  war  to  enter 
and  search  the  vessels  of  the  United  States,  in  time  of 
peace,  under  any  circumstances  whatever,  would  meet 
with  universal  repugnance  in  the  public  opinion  of  the 
country." 

Apart  from  the  distrust,  necessarily  occasioned  by  the 
avowal  of  the  Prince  Regent,  that,  a  right  of  search, 
conceded  for  a  legitimate  purpose,  might  be  perverted 
to  any  use  that  suited  the  interest  of  the  party  exercis- 
ing it,  it  is  impossible  to  conceive  of  a  compact  marked 
by  grosser  inequality,  under  the  guise  of  reciprocity, 
unless  it  be  the  abolition  of  privateering,  leaving  private 
property,  at  sea,  subject  to  capture  by  public  ships,  than 
a  mutual  right  of  search  between  two  nations  of  equiv- 
alent mercantile  tonnage,  the  one  of  which  had  only 
ten  or  a  dozen  cruisers,  while  the  other  possessed  hun- 
dreds. 

But  the  same  popular  abhorrence  of  the  slave-trade, 
which  elsewhere  favored  the  British  scheme  of  a  mari- 
time police,  was  scarcely  less  efficient  in  its  behalf  in 
the  United  States.  Even  those  who  were  intrusted 
with  the  management  of  our  public  concerns  seem  to 
have  forgotten  the  lessons  which  dear-bought  experi- 
ence had  so  recently  taught  them. 

In  January,  1818,  and  before  any  communication  was 
made  by  Lord  Castlereagh  to  Mr.  Rush,  the  subject  of  a 
concert  with  foreign  nations,  in  reference  to  the  slave- 
trade,  had  been  introduced  into  the  Senate  by  Mr.  Bur- 
rill  of  Rhode  Island ; 1  and  the  same  year  an  act  was 
passed  rendering  more  stringent  the  laws  against  Amer- 
ican citizens  engaged  in  it.  This,  at  the  next  session 

1  Bentoii's  Abridged  Debates,  Vol.  VI.  p.  12. 


VISITATION   AND    SEARCH.  27 

of  Congress,  was  followed  by  an  act  authorizing  the 
President  to  employ  our  armed  ships  for  the  sup- 
pression of  the  trade,  dividing  the  proceeds  of  slavers 
among  the  captors  and  giving  a  bounty  of  $25,  for  each 
negro. 

The  proposition  for  a  cooperation  with  other  powers, 
and  involving  a  reciprocal  right  of  search,  occupied  the 
attention  of  the  House  of  Representatives  at  five  succes- 
sive sessions,  commencing  with  1820.  By  a  law  of  May 
the  15th  of  that  year  the  slave-trade  was  made  piracy, 
and  punishable,  on  conviction  before  a  circuit  court  of 
the  United  States,  by  death.1  The  object  of  passing  the 
act  would  seem  to  have  been  not  to  apply  to  an  offence 
cognizable  in  our  own  courts  only,  a  term  applicable  to  a 
crime  everywhere  justiciable,  and  which  might  therefore 
give  rise  to  constant  mistakes ;  but  it  was  adopted,  on 
the  expectation  that  the  slave-trade  would  be  made 
piracy  by  the  law  of  nations,  and  thereby  preclude  all 
questions  as  to  the  right  of  search.  Lord  Stowell  has 
adverted  to  the  difficulty,  if  not  impracticability,  of 
obtaining  such  a  sanction  for  it  as  would  justify  the  in- 
sertion of  a  new  crime  into  the  international  code.  And 
all  must  be  sensible  of  the  inconvenience  which  he 
shows  would  result  from  enforcing  such  a  provision, 
indiscriminately  by  all  nations  against  the  citizens  of 
all  nations.  At  all  events,  under  existing  circumstances, 
no  satisfactory  reason  would  seem  to  exist  for  preserv- 
ing the  misnomer,  which,  if  not  obnoxious  to  the  graver 
objection  of  misleading  naval  officers,  is  apt  to  be 
regarded  by  the  popular  mind  as  an  apology  for  the 
British  pretensions. 

1  U  S.  Statutes  at  Large,  Vol.  V.  p.  600. 


28  VISITATION   AND    SEARCH. 

Resolutions,  founded  on  elaborate  reports,  in  which 
an  anxious  desire  to  effect  an  object  then  paramount  in 
the  public  mind,  induced  the  House  of  Representatives  to 
overlook  the  insuperable  objections  to  a  British  maritime 
police,  were  passed  in  1821,  1822,  and  1823.  The  Presi- 
dent was  requested  to  enter  into  arrangements  with  other 
powers  for  the  effectual  abolition  of  the  African  slave- 
trade,  and  on  the  last  occasion  a  clause  was  appended 
proposing  its  denunciation  as  piracy  under  the  law  of 
nations.  The  vote,  in  1823,  was  nearly  unanimous, 
though  an  amendment  giving  an  express  assent  to  a 
qualified  right  of  search  was  rejected. 

Under  these  circumstances,  Mr.  Rush  was  instructed 
to  propose  to  England  an  arrangement  which  resulted 
in  a  convention,  signed  on  13th  of  March,  1824.  This 
treaty,  while  it  conceded  a  mutual  right  of  search  within 
certain  limits,  substituted  for  the  mixed  tribunals  objected 
to  by  us  as  being  inconsistent  with  our  constitution, 
a  provision  that  the  captured  vessels  should  be  sent 
before  the  tribunals  of  their  own  country.  England  had 
been  required,  as  a  preliminary  to  any  convention,  to 
pass  a  statute,  making,  as  we  had  done,  the  slave-trade 
piracy.1 

When  the  convention  was  returned  to  the  United 
States,  the  Senate  ratified  it  with  amendments,  one  of 
which  struck  out  "America"  from  the  assigned  cruising 
grounds,  which  originally  included  the  "  coasts  of  Africa, 
of  America,  and  of  the  West  Indies."  To  this  the  British 


1  Cong.  Doc.  18  Cong.  2  Sess.  Doc.  2.  The  Earl  of  Harrowby  said  in  the 
House  of  Lords,  that,  "  unless  the  law  passes,  the  convention  cannot  be  car- 
ried into  effect,  but  the  bill  and  treaty  are  independent,  and  so  they  are  in 
America.  Whether  the  treaty  is  ratified  or  not,  the  slave-trade  will  be  piracy 
by  the  laws  of  both  countries."  —  Hansard's  Parliamentary  Debates,  x.  s. 
Vol.  XI.  p.  1. 


VISITATION  AND   SEARCH.  29 

secretary,  Mr.  Canning,  would  not  assent ;  and  to  a  subse- 
quent proposal  through  Mr.  Addington  to  conclude  a 
new  convention  adopting  the  Senate's  amendments,  with 
the  exception  of  the  erasure  of  "  America,"  Mr.  Adams, 
on  the  4th  of  December,  1824,  replied,  that  the  President 
had  determined  "to  refer  the  whole  subject  to  the  delib- 
erate advisement  of  Congress."  This  was  done  in  the 
last  annual  message  of  Mr.  Monroe.  He  there  says : 
"As  objections  to  the  principle  recommended  by  the 
House  of  Representatives,  or  at  least  to  the  consequences 
inseparable  from  it,  and  which  are  understood  to  apply 
to  the  law,  have  been  raised,  which  may  deserve  a  recon- 
sideration of  the  whole  subject,  I  have  thought  it  proper 
to  suspend  the  conclusion  of  a  new  convention  until  the 
definitive  sentiments  of  congress  may  be  ascertained." ] 

The  Senate  having  subsequently  rejected  a  similar 
treaty  with  Colombia,  from  which  "  the  coasts  of  Amer- 
ica "  were  excepted,  Mr.  Clay  wrote  to  Mr.  Addington, 
April  6,  1825,  that  "it  would  seem  to  be  unnecessary 
and  inexpedient  any  longer  to  continue  the  negotiation 
respecting  the  slave  convention,  with  any  hope  that  it 
can  be  made  to  assume  a  form  satisfactory  to  both 
parties."  2 

Thus,  through  the  obstinate  adherence  of  Mr.  Canning 
to  a  point  which,  as  the  principle  was  conceded  by  us, 
was  of  no  significance,  did  we  escape  from  an  obligation, 
that,  even  if  it  had  not  led  to  the  permanent  establish- 
ment of  a  British  police  in  our  immediate  neighborhood 
(for  permission  to  cruise  on  the  "coasts  of  the  West 
Indies  "  wrould  have  included  the  Gulf  of  Mexico),  could 


1  Annual  Register,  1824,  p.  119*. 

2  Annual  Register,  1825,  p.  61*. 

3* 


30  VISITATION   AND    SEARCH. 

scarcely  have  resulted  otherwise  than  in  continual  col- 
lisions.1 

In  1825,  the  subject  of  the  slave-trade  came  before 
the  Supreme  Court  of  the  United  States,  in  the  case  of 
The  Antelope.  Marshall,  Chief  Justice,  delivering  the 
opinion  of  the  court,  held :  "  As  no  nation  can  prescribe 
a  rule  for  others,  none  can  make  a  law  of  nations ;  and 
the  traffic  remains  lawful  to  those  whose  governments 
have  not  forbidden  it. 

"  If  it  is  consistent  with  the  law  of  nations,  it  cannot 
in  itself  be  piracy.  It  can  be  made  so  only  by  statute ; 
and  the  obligations  of  the  statute  cannot  transcend  the 
legislative  power  of  the  State  which  may  enact  it. 

"  If  it  be  neither  repugnant  to  the  law  of  nations,  nor 
piracy,  the  right  of  bringing  in  for  adjudication,  in  time 
of  peace,  even  where  the  vessel  belongs  to  a  nation 
which  has  prohibited  the  trade,  cannot  exist.  The 
courts  of  no  country  execute  the  penal  laws  of  another ; 
and  the  course  of  the  American  government  on  the 
subject  of  visitation  and  search  would  decide  any  case 
in  which  that  right  had  been  exercised  by  an  American 
cruiser  on  the  vessel  of  a  foreign  nation,  not  violating 
our  municipal  laws,  against  the  captors." 2 

And  in  The  Marianna  Flora,  decided  in  1826,  it  was 
held,  that  the  right  of  visitation  and  search,  in  peace, 
does  not  belong  to  the  public  ships  of  any  nation.  This 
right  is  strictly  a  belligerent  right,  allowed  by  the  general 
consent  of  nations  in  time  of  war,  and  limited  to  those 
occasions.  As  to  public  ships,  there  is  no  reason  why 

1  The  mistake  of  Mr.  Canning  was  alluded  to,  in  1843,  in  the  discussion  of 
the  Ashburton  Treaty,  by  Lord  Brougham,  -who  considered  the  American 
alteration  proper,  and  by  Sir  Robert  Peel.     Annual  Register,  1843,  p.  14]. 

2  AVheaton's  Reports,  Vol.  X.  p.  122. 


VISITATION  AND   SEARCH.  31 

they  may  not  approach  any  vessels  descried  at  sea  for 
the  purpose  of  ascertaining  their  real  character ;  but,  on 
the  other  hand,  no  ship  is  under  such  circumstances 
bound  to  lie  by  or  wait  the  approach  of  any  other  ship.1 

Before  leaving  this  branch  of  our  subject,  we  would 
refer  to  the  French  adjudications,  which  correspond  with 
those  of  the  English  and  American  courts  as  to  the  ab- 
sence of  all  jurisdiction  over  foreign  vessels  engaged  in 
the  slave-trade.  Such  was  the  decision  of  the  Commission 
des  Prises  of  Martinique  of  the  10th  of  April,  1824,  in 
the  case  of  an  American  vessel  captured  by  a  French 
frigate,  and  of  the  Commission  des  Prises  of  the  Isle  of 
Bourbon,  10th  December,  1840,  in  the  case  of  a  Por- 
tuguese brig,  captured  both  as  a  pirate  and  as  a  slaver. 
On  the  latter  charge,  the  commission  says,  that,  how- 
ever culpable  the  acts  of  the  captain  and  crew  might 
have  been,  they  are  not  punishable  by  the  French  tri- 
bunals, "  because  no  convention  between  France  and 
Portugal  authorizes  the  capture  of  slave  ships,  and  the 
punishment  of  their  captains  and  crews." 2 

In  1824  a  treaty  was  made  with  Sweden.  And  in 
1826  one  was  concluded  with  Brazil,  to  which  we  may 
hereafter  have  occasion  to  refer,  for  the  total  abolition 
of  the  slave-trade  in  three  years,  after  which  it  was 
to  be  deemed  and  treated  as  piracy.  In  the  mean  time, 
it  was  to  be  regulated  in  conformity  with  the  provisions 
of  the  treaties  of  1815  and  of  1817  with  Portugal. 

The  next  important  proceeding  of  England  was  the 
conclusion  of  the  conventions  of  1831  and  1833  with 
France,  by  which  the  right  of  search,  so  repeatedly  solic- 


Wheaton's  Reports,  Vol.  XI.  p.  42. 

De  Pistoye  &  Duverdy —  Traite  des  Prises,  torn.  1,  p.  75. 


32  VISITATION   AXD    SEARCH. 

ited  since  1814,  was  acquired.  Not  only  did  the  govern- 
ment of  Louis  Philippe  make  this  concession,  but  it  ob- 
tained the  adhesion  to  the  treaties,  of  Denmark  and  Sar- 
dinia in  1834,  of  the  Hanse  Towns  and  Tuscany  in  1837, 
of  Naples  in  1838,  and  of  Hayti  in  1839. 

The  Duke  de  Broglie,  who  signed  the  conventions, 
some  years  afterwards  defended  them  on  the  ground, 
that,  during  the  whole  reign  of  the  elder  Bourbons,  and 
particularly  from  1822  to  1830,  French  vessels,  as  well 
as  American  [of  the  latter  he  read  a  list  of  twenty],  had 
actually  been  searched  and  seized  by  British  cruisers,  and 
finally  condemned.  "  As  when  those  conventions  were 
made,"  he  added,  "  all  continental  Europe  was  arrayed 
against  France,  she  could  not  refuse  to  share  with  the 
only  State  that  had  manifested  a  sympathy  in  the  revo- 
lution, a  power  which  that  State  had  exclusively  exer- 
cised under  the  government  of  the  restoration."  * 

In  1834  the  abolition  of  slavery  in  the  West  Indies 
went  into  operation.  Eight  hundred  thousand  slaves 
were  to  be  emancipated,  for  which  Great  Britain  paid 
an  indemnity  to  the  West  India  proprietors  of 
£20,000,000. 

Whether  impelled  by  the  disastrous  result  of  that  ex- 
periment, or  emboldened  by  the  treaties  which  had  been 
made  to  secure  the  right  of  search,  and  the  impunity 
which  had  attended  the  violation  of  the  flag  of  coun- 
tries that  had  not  entered  into  any  conventional  ar- 
rangements with  her,  England,  in  1839,  assumed  to  ac- 
complish, by  the  authority  of  her  own  legislature,  what 
could  not  be  effected  with  the  consent  of  other  nations. 
An  act  (2  &  3  Viet.  c.  73)  was  passed,  which,  although 

1  Annual  Register,  1843,  p.  276]. 


VISITATION   AND    SEARCH.  33 

expressly  aimed  at  Portugal,  placed  the  mercantile 
marine  of  all  nations  at  the  mercy  of  the  British  navy, 
and  is  a  parliamentary  sanction  for  all  the  aggressions 
of  which  we  have  had  to  complain. 

The  offence  of  Portugal  was  not  so  much  that  she 
had  not  complied  with  her  treaty  stipulations,  as  that 
she  would  not  enter  into  new  engagements  required  by 
the  policy  or  interests  of  England.  Even  if  the  treaties 
had  been  violated,  the  redress  was  by  negotiation  and 
not  by  parliamentary  enactment,  as  was  well  remarked 
by  the  Duke  of  Wellington.  Adverting  to  the  fact  that 
one  of  the  clauses  made  it  lawful  to  detain  any  vessels 
"whatever,  on  suspicion,  on  the  high  seas,  and  demand 
their  papers,  and  the  persons  exercising  such  authority 
were  moreover  indemnified  from  all  consequences,  he 
asked,  "  Was  it  intended  that  the  vessels  of  any  power 
in  Europe  might  be  searched  and  afterwards  allowed  to 
proceed  on  their  voyage,  whether  we  had  treaties  with 
those  powers  or  not  ? "  The  answer  of  the  Premier, 
Lord  Melbourne,  was  little  calculated  to  satisfy  foreign 
States.  "  The  bill,"  he  said,  "  did  not  bind  her  to  adopt 
those  measures.  It  was  for  her  Majesty  to  apportion 
her  measures  to  meet  the  necessities  of  the  case."  The 
intention  to  interpolate  the  English  municipal  law  into 
the  law  of  nations  was  thus  clearly  admitted. 

The  act  gave  power  to  any  person  acting  under  the 
authority  of  the  admiralty  or  of  a  secretary  of  state, 
not  only  to  detain,  for  the  purpose  of  examining  the 
papers,  but  to  seize  and  capture,  the  vessels  of  any 
nation  whatever  supposed  to  be  connected  with  the 
slave-trade.1  Jurisdiction  is  given  to  the  courts  of  ad- 


1  The  bill  had  passed  the  House  of  Commons  with  the  following  words  in 
the  second  clause  :  "  That  in  case  her  Majesty  should  please  to  issue  orders 


34  VISITATION  AND    SEARCH. 

miralty  over  any  Portuguese  vessel  or  any  vessel  which 
shall  not  establish,  to  the  satisfaction  of  such  court,  that 
she  is  justly  entitled  to  claim  the  protection  of  the  flag 
of  a  State  or  nation,  and  to  condemn  any  such  vessel  and 
adjudge  as  to  slaves  found  therein,  in  like  manner  and 
under  such  and  the  like  rules  and  regulations  as  are 
contained  in  any  act  of  parliament  in  force,  in  relation 
to  the  suppression  of  the  slave-trade  by  British  owned 
ships.1 

It  also  condemned  vessels  on  account  of  their  suspic- 
ious equipments,  unless  it  was  shown  that  they  were  in- 
tended for  a  legal  trade.  The  same  bounties  as  in  the 
case  of  the  capture  of  British  ships  were  also  given  to 
the  captors,  as  well  for  the  vessel  as  for  the  slaves,  and 
the  treasury  was  authorized  to  pay  a  portion  of  them  in 
case  of  the  death  of  a  slave  before  condemnation.  The 
slaves  were  also  to  be  disposed  of,  as  if  taken  in  British 
ships.2  And  by  a  further  Act  of  5  &  6  Viet.  (1842) 
c.  91,  the  net  proceeds  of  the  foreign  vessels  condemned 
were  to  be  paid  to  the  captors.3 

to  her  cruisers  to  capture  Portuguese  vessels  engaged  in  the  slave-trade,  or 
vessels  engaged  in  the  slave-trade,  not  having  on  board,  or  the  masters  whereof 
should  neglect  to  produce  on  demand,  papers  showing  to  the  subjects  ofichat 
Stale  such  vessels  belong."  This  was  amended,  on  motion  of  Lord  Lyndhurst, 
in  the  House  of  Lords,  by  substituting  for  the  words  in  italic,  "  or  any  other 
vessels  engaged  in  the  slave-trade  and  not  justly  entitled  to  claim  the  protec- 
tion of  any  flag."  Practically  the  change  of  phraseology  is  unimportant ;  but 
the  original  draft  still  more  clearly  discloses  the  intent  of  the  bill  as  to  the 
exercise  of  the  claim  of  search. 

1  It  was  decided,  on  appeal,  in  the  case  of  the  Portuguese  ship  The  Thir- 
teenth of  June,  condemned  under  this  act,  that  the  seizure,  which  was  made 
at  Rio  de  Janeiro,  was  for  a  violation  of  the  municipal  laws  of  Great  Britain, 
and  that,  therefore,  the  proceedings  were  properly  according  to  the  provisions 
of  the  statute  against  British  ships,  and  not  according  to  the  forms  of  the  civil 
law. —  (4  Moore's  Privy  Council  Reports,  p.  184.) 

*  British  St.  at  Large,  Vol.  LXXIX.  p.  441. 

s  Ib.  vol.  LXXXII.  c.  782. 


VISITATION  AND    SEARCH.  35 

No  one,  on  a  question  of  this  nature,  could  have  been 
entitled  to  more  consideration  than  the  Duke  of  Welling- 
ton. As  a  plenipotentiary  at  Paris  and  at  Vienna,  and 
subsequently  at  Aix  la  Chapelle  and  at  Verona,  on  all 
which  occasions  the  right  of  search,  in  peace,  was  delib- 
erately considered  in  reference  to  the  slave-trade,  he 
well  understood  that  it  could  only  exist  as  a  voluntary 
concession.  His  opposition  to  the  measure  was  rendered 
in  every  appropriate  mode  which  parliamentary  usage 
justified.  Nor  did  he  refrain,  in  referring  to  its  possible 
application  to  us,  from  declaring,  that,  "  if  there  was  one 
point  more  to  be  avoided  than  another,  it  was  that  re- 
lating to  the  visitation  of  vessels  belonging  to  the  Uni- 
ted States."  "Nothing  went  to  show  the  least  disposi- 
tion, on  their  part,  to  permit  the  right  of  detention  and 
search  for  papers."  And  he  added,  after  a  protest 
against  the  third  reading,  "  The  measure  still  exhibited 
its  criminal  character.  It  was  a  breach  of  the  law  of 
nations,  —  a  violation  of  international  treaties,  —  and 
would  go  much  further  to  encourage  than  to  prevent 
the  traffic  against  which  its  enactments  were  directed." ] 

Lord  Stowell  had,  in  the  memorable  judgment  in  the 
case  of  The  Louis,  among  the  positions  which  we  have 
already  quoted,  laid  it  down,  that  "  neither  a  British  act 
of  parliament,  nor  any  commission  founded  on  it,  can 
affect  any  right  or  interest  of  foreigners  unless  they  are 
founded  upon  principles  and  impose  regulations  that  are 
consistent  with  the  law  of  nations ; " 2  but  the  authority 
of  the  first  admiralty  judge  that  England  ever  possessed 
was  no  more  regarded  than  the  remonstrances  of  her 
greatest  warrior  and  statesman. 


1  Annual  Register,  1839,  p.  545. 

8  Dodson's  Admiralty  Reports,  p.  239. 


36  VISITATION   AND    SEARCH. 

In  order  that  the  provisions  of  the  Act  of  1839,  which 
refer  to  the  general  statutes  as  to  the  slave-trade, 
should  be  understood,  it  may  be  proper  to  notice,  that, 
by  the  Act  of  5  Geo.  4,  c.  113  (24th  of  June,  1824),1 
"  to  amend  and  consolidate  the  laws  relating  to  the  abo- 
lition of  the  slave-trade,"  the  persons  appointed  to  pro- 
tect the  condemned  slaves  were  authorized  to  enlist 
them  in  the  land  or  naval  service,  or  to  bind  them  out  as 
apprentices  for  seven  years ;  and,  by  a  subsequent  sec- 
tion, orders  were  to  be  made  when  their  apprentice- 
ship expired,  so  that  they  migM  not  become  cJiargeable  to 
any  colony  or  parish.  Bounties  were  given,  varying  un- 
der circumstances,  from  £20  to  £7  10s.,  for  each  cap- 
tured slave,  but  which  were  afterwards  reduced  to  £5. 
By  an  Act  of  1  and  2  Victoria,  c.  47,2  a  bounty  on  the 
tonnage,  of  £1  10s.  per  ton,  was  granted,  and  £4  addi- 
tional when  there  were  no  slaves ;  and  the  Queen's 
moiety  of  captures  made  under  treaties  was  to  be  paid 
to  the  captors. 

That  the  whole  British  scheme  may  be  considered  as 
to  its  practical  effects  on  the  slave-trade,  and  that  the 
motives  which  it  holds  forth  for  infringing  on  maritime 
rights,  in  the  name  of  humanity,  may  be  duly  appreci- 
ated, it  is  necessary  to  refer  to  the  arrangements  for 
mixed  tribunals  under  the  treaties  with  Portugal,  Spain, 
the  Netherlands,  Sweden,  and  Brazils,  and  which  were 
afterwards  extended  to  other  countries.  Each  of  the 
two  contracting  powers  was  to  appoint  a  commissary 
judge,  and  a  commissioner  of  arbitration,  and  in  case 
the  two  judges  should  not  agree  they  were  to  draw 
lots  for  one  of  the  commissioners,  who  was  to  decide 


1  British  Statutes  at  Large,  Vol.  LXIV.  p.  626. 
*  Ibid.  Vol.  LXXVIII.  p.  224. 


VISITATION   AND    SEARCH.  37 

conjointly  with  the  judges.  And  it  would  seem,  that, 
in  the  absence  of  the  judge  and  commissioner  of  one  of 
the  powers,  the  judge  and  commissioner  of  the  other 
were  competent  to  form  a  court  arid  condemn  a  vessel 
whose  country  was  unrepresented.  Such  was  the  case  as 
regards  The  Donna  Barbara,  which,  on  other  grounds, 
became  a  subject  of  investigation  in  the  Court  of  Admi- 
ralty, without  any  allusion  being  made  to  the  compo- 
sition of  the  mixed  tribunal  by  which  she  was  con- 
demned.1 

The  slaves  were  to  be  delivered  over  to  the  govern- 
ment of  the  country  within  whose  jurisdiction  the  com- 
mission sat,  they  were  to  be  employed  as  free  laborers, 
and  to  receive  certificates  of  emancipation,  each  govern- 
ment guaranteeing  the  liberty  of  the  individuals  con- 
signed to  it.  The  practical  results  of  this  arrangement 
in  Cuba,  while  there  were  any  cases  to  be  adjudicated, 
as  well  as  of  the  use  made  by  the  English  of  the  liber- 
ated slaves  taken  by  them,  either  under  their  general 
law  or  the  Act  of  1839,  which  has  virtually  superseded 
the  mixed  tribunals,  may  hereafter  be  alluded  to. 

We  are  now  approaching  the  time  when  it  was  to 
become  evident  that  the  policy  of  the  Act  of  1839  was 
intended  to  embrace  all  nations,  that  did  not  voluntarily 
submit  their  vessels  to  British  maritime  surveillance; 
and  that  it  may  be  seen  that  the  Duke  of  Wellington 
was  not  mistaken  as  to  the  intended  general  operation 
of  that  act,  it  may  be  here  stated  that  it  is  still  in 
force,  though  it  was,  in  reference  to  the  negotiation  of 
ttye  Treaty  of  10th  of  July,  1842,  with  Portugal,  specially 


1  Haggard's  Admiralty  Reports,  Vol.  II.  p.  336  ;  Ibid.  Vol.  III.  App.  C,  p. 
446. 

4 


38  VISITATION  AND    SEARCH. 

repealed  with  regard  to  that  country  by  the  Act  of  5 
and  6  Victoria,  c.  114.1  Indeed  in  the  debate  on  the 
original  law,  it  was  admitted  that  American  vessels  had 
already  in  several  instances  been  seized  by  British  cruis- 
ers ;  but  it  was  contended,  by  the  Earl  of  Minto  (the 
first  Lord  of  the  Admiralty),  that  no  exception  had  been 
taken  by  our  government  or  people  to  the  enforcement 
by  them  of  our  own  laws  against  the  slave-trade.  And 
on  an  important  occasion  in  1843,  Lord  Aberdeen  stated 
in  the  House  of  Lords,  that  it  was  only  in  February, 
1841,  that  Lord  Palinerston  gave  instructions  "to  ab- 
stain from  capturing  American  vessels,  not  visiting  or 
searching  merely,  but  capturing,  American  vessels  sus- 
pected to  be  slavers." 2 

In  answer  to  reclamations,  made  by  the  American 
minister  in  London  for  the  seizure  and  detention  of 
vessels  belonging  to  citizens  of  the  United  States,  Lord 
Palmerston,  under  date  of  August  27,  1841,  explicitly 
claimed  a  right,  and  which  he  avowed  the  intention  of 
his  government  to  continue  to  exercise,  for  British  cruis- 
ers to  examine  our  vessels,  with  a  view  to  ascertain  by 
an  inspection  of  papers  their  nationality,  and  that  they 
meant  that  the  United  States  flag  should  only  exempt  a 
vessel  from  search,  when  that  vessel  is  provided  with 
the  papers  entitling  her  to  wear  that  flag,  and  proving 
her  to  be  United  States  property,  and  navigated  according 
to  law. 

On  Mr.  Stevenson's  showing  that  the  new  pretensions 
of  England,  founded  on  the  necessity  and  expediency  of 
the  power,  as  a  means  to  carry  out  treaties  entered  into 


1  British  Statutes  at  Large,  Vol.  LXXXII.  p.  980. 

2  Hansard's  Parl.  Debates,  N.  s.  Vol.  LXVHI.  p.  659. 


VISITATION   AND    SEARCH.  39 

with  other  States,  were  incompatible  with  the  law 
of  nations  as  expounded  in  her  own  courts,  Lord  Aber- 
deen replied,  October  13,  1841,  intimating  that  Lord 
StowelTs  decisions  were  no  longer  authority,  but  that 
the  change  of  circumstances,  by  the  happy  concurrence 
of  the  States  of  Christendom,  in  a  great  object,  "  not 
merely  justifies,  but  renders  indispensable,  the  right  now 
claimed  and  exercised  by  the  British  government."  It 
is,  however,  due  to  this  nobleman,  whose  courteous 
intercourse,  during  exciting  discussions  many  years  ago 
respecting  our  north-eastern  boundary,  is  remembered 
with  pleasure,  to  state,  that  the  tone  and  manner  of  this 
communication  differed  widely  from  his  predecessor's. 

In  his  note  Lord  Aberdeen  admits  that  so  much 
respect  and  honor  are  due  to  the  American  flag,  that  no 
vessel  bearing  it  ought  to  be  visited  by  a  British  cruiser, 
except  under  the  most  grave  circumstances,  and  well- 
founded  doubts  of  the  genuineness  of  its  character. 
And  he  further  says  :  "  It  is  obvious,  therefore,  that  the 
utmost  caution  is  necessary  in  the  exercise  of  the  right 
claimed  by  Great  Britain.  While  we  have  recourse  to 
the  necessary,  and  indeed  the  only,  means  for  detecting 
imposture,  the  practice  will  be  carefully  guarded,  and 
limited  to  cases  of  strong  suspicion.  The  undersigned 
begs  to  assure  Mr.  Stevenson  that  the  most  precise  and 
positive  instructions  have  been  issued  to  her  Majesty's 
officers  on  this  subject" 

Mr.  Stevenson  remarks,  in  his  answer  of  October  21, 
1841,  that  the  claim  asserted  by  Lord  Palmerston  made 
the  commander  of  every  British  cruiser  the  exclusive 
judge,  whether  American  vessels  were  "  properly  pro- 
vided with  papers  entitling  them  to  the  protection  of 
the  flag  they  wear  and  proving  them  to  be  United 


40  VISITATION   AND    SEARCH. 

States  property,  and  navigating  the  ocean  according  to 
law."  He  alludes  to  the  fact,  that,  while  England  claims 
to  herself  the  dominion  of  the  sea,  she  was  rebuking 
Hayti  for  attempting  to  enforce  the  principles  of  her 
laws  and  treaties  against  those  States  that  were  not 
parties  to  them.  He  asks :  "  Why  might  not  the  right  of 
search  for  seamen  and  deserters,  and  that  of  impress- 
ment, be  defended  upon  the  principles  of  the  present 
claim?  Let  it  be  supposed,  for  the  purpose  of  illus- 
tration, that  Great  Britain  entered  into  treaties  with 
other  nations,  by  which  the  right  of  search  for  seamen 
or  deserters  was  given  to  the  vessels  of  each  other,  and 
that  some  of  the  contracting  States,  in  order  to  evade 
their  engagements,  should  resort  to  the  fraudulent  use 
of  the  flags  of  other  nations.  And  suppose  also,  that, 
with  the  view  of  enforcing  those  treaties,  it  should  be 
deemed  expedient  to  assert  a  right  of  boarding  and 
examining,  upon  the  high  seas,  the  vessels  of  nations 
who  had  not  surrendered  the  right,  and  were  not  parties 
to  the  treaties.  Does  Lord  Aberdeen  or  her  Majesty's 
government  believe  that  such  a  power  would  be  toler- 
ated by  any  independent  nation  upon  the  face  of  the 
earth  ? "  l  In  Lord  Aberdeen's  answer,  which  was 
addressed  to  Mr.  Everett  under  the  date  of  December 
20,  1841,  he  attempted  to  make  the  distinction  between 
visit  and  search.  "  The  right  of  search,"  he  said,  "  is  not 
confined  to  the  verification  of  the  nationality  of  the 
vessel,  but  also  extends  to  the  object  of  the  voyage,  and 
the  nature  of  the  cargo.  The  sole  purpose  of  the 
British  cruisers  is  to  ascertain  whether  the  vessels  they 
meet  with  are  really  American."  As,  however,  it  was 

1  Cong.  Globe,  Vol.  XI.  part  2,  p.  5-11. 


VISITATION  AND   SEARCH.  41 

not  proposed  to  abandon  the  claim  to  detain  our  vessels, 
in  order  that  British  cruisers  might  satisfy  themselves, 
by  the  "  inspection  of  their  papers  or  other  proofs,"  of 
the  genuineness  of  their  character,  the  distinction  was 
without  any  practical  difference. 

Nor  is  it  to  be  forgotten,  that,  if  the  proposition  of  the 
British  government  was  tenable,  we  were  in  a  much 
worse  position  than  if  we  had  actually  conceded  the  right 
of  search.  In  the  treaties  which  England  made  with  the 
several  European  powers,  there  is  a  limit  as  to  the  time 
when,  and  the  place  where,  the  visitation  for  the  exami- 
nation of  papers  may  be  made ;  and  the  right  of  deten- 
tion is  confined  to  certain  cruisers  specially  authorized. 
In  our  case,  if  admitted  at  all,  it  would  be  equally 
competent  for  any  ship  of  war  (and  if  English  ships  have 
the  right,  all  others  possess  it)  to  visit  and  detain  any 
merchantman  at  any  time  and  in  any  part  of  the 
ocean. 

The  transfer  of  the  negotiation  to  Washington  pre- 
vented any  answer  from  Mr.  Everett ;  but  the  attempt 
to  bind  us  by  the  acts  of  other  States  had  already  been 
met  by  President  Tyler,  who,  in  his  annual  message  of 
December  7,  1841,  declared  that  the  "United  States 
cannot  consent  to  interpolations  into  the  maritime  code 
at  the  mere  will  and  pleasure  of  other  governments," 
and  that  "  when  we  are  given  to  understand,  as  in  this 
instance,  by  a  foreign  government,  that  its  treaties  with 
other  nations  cannot  be  executed  without  the  establish- 
ment and  enforcement  of  new  principles  of  maritime 
police,  to  be  employed  without  our  consent,  we  must 
employ  language  neither  of  equivocal  import  nor  sus- 
ceptible of  misconstruction.  Whether  this  government 
.should  now  enter  into  treaties  containing  mutual  stipu- 

4* 


42  VISITATION  AND    SEARCH. 

lations  upon  this  subject  (the  slave-trade),  is  a  question 
for  its  mature  deliberation.  Certain  it  is,  that,  if  the 
right  to  detain  American  ships  on  the  high^eas  can  be 
justified  on  the  plea  of  a  necessity  for  such  detention, 
arising  out  of  the  existence  of  treaties  between  other 
nations,  the  same  plea  may  be  extended  and  enlarged 
by  the  new  stipulations  of  new  treaties,  to  which  the 
United  States  may  not  be  a  party." 

Circumstances,  at  this  time,  seemed  particularly  to 
favor  the  British  attempt  to  render  her  navy  as  efficient 
for  maritime  supremacy  in  peace  as  in  war.  Austria.,  Rus- 
sia, Prussia,  all  of  which,  as  well  as  France  (already  bound 
by  the  treaties  of  1831  and  1833),  had  so  strenuously 
opposed  at  Vienna  and  the  subsequent  congresses,  any 
general  crusade  against  the  slave-trade,  now  yielded  to 
the  diplomacy  of  England.  On  20th  of  December,  1841, 
notwithstanding  the  irritation  growing  out  of  the  Syrian 
and  Egyptian  question,  and  the  isolation  in  which 
France  was  placed  by  the  convention  of  15th  July, 
1840,  for  regulating  the  affairs  of  the  East,  without  her 
participation,  a  treaty  was  signed  between  them  all  and 
Great  Britain,  "  whereby,"  says  the  Annual  Register, 
"  the  former  powers  agreed  to  adopt  the  English  laws 
relating  to  the  slave-trade."  The  traffic  was  declared 
piracy,  and  the  five  powers  mutually  conceded  to  each 
other  the  right  of  search,  in  the  case  of  all  vessels  bear- 
ing their  respective  flags.1 

In  a  matter  in  which  the  powers  other  than  France 
had  no  navigation  or  commerce  to  be  affected,  as  the 
Mediterranean  was  excluded  from  the  operation  of  the 
treaty,  it  is  not  so  remarkable  that  they  should  have 

1  Annual  Register,  1841,  p.  254. 


VISITATION  AND    SEARCH.  43 

ultimately  yielded  to  the  persistent  importunities  of 
England,  as  that  they  should  have  so  long  resisted  her. 
What,  indeed,  shows  the  purely  formal  character  of  this 
convention  (and  the  same  remark  is  applicable  to  many 
other  slave-trade  treaties  made  by  England),  is,  that 
the  employment  of  cruisers  was  in  nowise  compulsory ; 
and  it  is  not  understood  that  any  ship  belonging  to 
Austria,  Prussia,  or  Russia  was  ever  empowered  to 
search  British  or  other  vessels  under  the  treaty,  or  that 
any  captures  have  been  made  by  England  of  slavers 
belonging  to  those  countries. 

But  the  convention  was  not  without  effect  in  strength- 
ening the  British  pretensions.  Fortunately,  however, 
for  our  country,  she  was  then  represented  in  Paris  by 
a  minister  whose  social  position,  acknowledged  intelli- 
gence, and  political  antecedents  not  only  gave  him  free 
access  to  the  official  organ  of  the  government,  but  to 
the  King  himself,  and  to  those  whose  opinions  exercised 
a  controlling  influence  over  the  public  sentiment  of  the 
nation. 

General  Cass  deemed  the  occasion  to  be  one  which 
made  it  his  duty  to  adopt  such  a  course  as  might  tend  to 
arrest  a  proceeding  disastrous  alike,  as  he  regarded  it,  to 
France  and  to  his  own  country,  united  by  "a  community 
of  interest  in  the  liberty  of  the  seas,"  "  a  community  of 
opinion  respecting  the  principles  which  guard  it,"  and 
"  a  community  in  danger,  should  it  ever  be  menaced  by 
the  ambition  of  any  maritime  power."  He  interposed 
to  prevent  the  ratification  of  the  Quintuple  Treaty  by 
France,  by  addressing  an  official  note  to  the  Minister  of 
Foreign  Affairs,  under  date  of  February  13,  1842,  having 
already  published,  in  January,  in  English  and  French,  a 
concise  examination  of  the  question  in  discussion 


44  VISITATION  AND    SEARCH. 

between  the  American  and  British  governments  con- 
cerning the  "  right  of  search." 

We  learn  from  his  official  despatches,  that  his  letter 
was  laid  before  the  King  and  council,  that  he  had  full 
conversations  on  the  subject,  not  only  with  Mr.  Guizot 
but  with  Mr.  Thiers,  by  the  latter  of  whom  he  was 
assured,  so  early  as  the  22d  of  February,  that  it  was 
"  impossible  the  ministry  should  ratify  the  treaty,"  and 
that  if  they  did,  "  they  would  lose  their  places."  On 
the  24th  of  that  month,  the  ratifications  of  the  four 
other  powers  were  exchanged,  in  London,  without  that 
of  France.  And  in  Mr.  Guizot's  reply  to  General 
Cass,  May  26th,  he  entirely  repudiates,  whatever  may 
be  the  fate  of  the  treaty  or  the  views  entertained  by 
the  cabinet  of  London,  any  construction  which  should 
extend  its  operations  beyond  the  parties  to  it.1 

General  Cass  was  also  encouraged  in  his  course  by 
Mr.  Dupin,  the  first  lawyer  of  France,  as  well  as  one  of 
her  ablest  statesmen,  who  said  to  him,  speaking  of  the 
claim  of  "  visit,"  "  Persist  in  your  opposition  to  that  un- 
just and  arrogant  pretension.  All  France  is  with  you." 2 

In  the  Chamber  of  Deputies,  the  amendment  of  Mr. 
Jacques  Lefebvre  to  the  answer  to  the  King's  speech, 
and  which  directly  referred  to  the  maintenance  of  the 
independence  of  the  flag,  was  carried  without  a  dis- 
senting vote,  except  from  the  ministers.  And  such  was 
the  success  that  attended  General  Cass's  labors,  that, 
•when  the  Chambers  adjourned,  on  the  4th  of  June,  the 
treaty  was  virtually  dead. 

Nor  was  the  defeat  of  the  Quintuple  Treaty  the  only 


1  Wheaton's  Elements,  Lawrence's  Introduction,  p.  cxxi. 
*  Congressional  Globe,  Vol.  XV.  p.  627,  628. 


VISITATION   AND    SEARCH.  45 

result  of  the  discussions  of  the  subject,  to  which  General 
Cass's  efforts  had  contributed.  The  debates  of  the  en- 
suing year  (1843)  compelled  the  ministry  to  take  meas- 
ures for  annulling  the  treaties,  by  which  France  was 
already  bound  to  England,  and  the  application  of  which, 
she  herself  had,  by  treaties  with  them,  extended  to  other 
countries.  "  The  most  vehement  advocates  of  freedom," 
says  the  Annual  Register,  "  seemed  disposed  to  allow  the 
slave-trade  to  be  carried  on  with  impunity,  rather  than 
subject  the  French  flag  to  an  imaginary  degradation  by 
conceding  the  right  of  search ;  and,  in  truth,  the  very 
idea  that  such  a  right  as  that  contended  for  by  Great 
Britain  could  be  derogatory  to  any  nation  was  never 
entertained  in  France  until  the  question  had  been  raised 
by  America,  which  was  no  party  to  the  treaties  of  1831 
and  1833,  nor  to  the  proposed  treaty  of  1841,  which 
France,  although  she  at  first  assented  to  it,  subsequently 
refused  to  ratify."  The  Marquis  de  Turgot  contended 
for  the  revocation  of  the  Treaties  of  1831  and  1833.  Mr. 
Dupin  denounced  them  as  based  on  English  ambition, 
and  having  for  their  object  to  increase  the  maritime  in- 
terests of  Great  Britain,  and  to  protect  and  extend  her 
empire  over  the  sea.  They  were  also  condemned  by  the 
Duke  de  Noailles  and  the  Prince  of  Moskowa,  and  even 
Guizot  admitted  that  there  had  been  abuses,  while  he 
referred  to  the  complications  growing  out  of  the  treaties 
with  other  powers,  and  to  the  impossibility  of  obtaining 
the  consent  of  England  to  any  modification.1 

We  have  been  more  minute  in  noticing  the  Quin- 
tuple Treaty  than  we  might  otherwise  have  deemed 
necessary,  in  consequence  of  an  impression  which  has 

1  Annual  Register,  1843,  p.  287]. 


46  VISITATION   AND    SEARCH. 

prevailed  that  the  failure  of  France  to  ratify  it  was 
owing  to  the  conclusion  of  the  Ashburton  Treaty.  It 
is  due  to  history  that  it  should  be  understood,  that  the 
former  was  effectually  defeated  before  the  commence- 
ment of  negotiations  for  the  latter ;  though  its  adoption 
may  not  have  been  without  influence  in  inducing  the 
substitution  of  the  Treaty  of  1845  for  those  of  1831  and 
1833  between  France  and  England,  and  which,  though 
not  as  objectionable  as  the  ones  which  it  superseded, 
was  itself  not  wholly  free  from  abnormal  exceptions. 
In  fact,  the  convention  of  1845,  which,  as  well  as  those 
that  preceded  it,  had  been  concluded  by  the  Duke  de 
Broglie,  was  a  temporary  expedient  that  France  resort- 
ed to,  in  order  to  extricate  herself  from  obligations 
which  the  discussion  of  the  right  of  search  had  rendered 
extremely  unpopular.  The  negotiation  of  it  was  dis- 
tinctly put  on  that  ground,  both  in  the  British  House  of 
Commons  and  the  French  Chambers.  Sir  Robert  Peel 
said :  "  Public  opinion  had  been  raised  in  France  against 
the  right  of  search.  Hour  after  hour  we  receive  mes- 
sages from  the  French  government,  and  we  reply,  '  We 
retain  our  opinion  as  to  the  obligation  that  is  upon  us 
to  put  down  this  traffic.  We  cannot  depart  from  the 
measures  already  taken,  unless  we  satisfy  ourselves  that 
the  French  government  will  adopt  some  other  measure 
as  efficacious  in  its  provisions.'"  And  Mr.  Guizot  de- 
clared, "  He  had  represented  to  the  British  ministry  the 
necessity  of  devising  some  other  means  of  attaining  the 
common  end — the  suppression  of  the  slave-trade — than 
the  right  of  visitation,  which  was  likely  to  compromise 
the  friendly  relations  between  the  two  countries." ] 

1  Annual  Register,  1845,  pp.  15],  217]. 


VISITATION   AND    SEARCH.  47 

It  may  not  be  uninteresting  to  notice  the  part  taken 
by  Lord  Palmerston,  then  as  now  out  of  office,  when 
this  subject  was  under  discussion  in  the  House  of  Com- 
mons. He  objected  to  the  appointment  of  a  joint  Eng- 
lish and  French  commission  to  consider  a  substitute  for 
search,  declaring  that  "  it  is  a  perfectly  self-evident 
proposition,  —  no  one  can  doubt  it,  —  that,  unless  you 
have  a  maritime  police,  it  is  impossible,  absolutely  and 
physically  impossible,  to  put  down  the  slave-trade."  He 
treats  with  no  great  respect  the  proposition  to  have  a 
foreign  naval  officer  to  cruise  in  British  vessels,  and  a 
British  officer  on  board  every  French  cruiser,  saying :  "  If 
it  is  to  be  done  for  one  power,  it  must  be  done  for  an- 
other ;  so  that  there  would  be  perfect  little  Noah's  arks 
sailing  about, — naval  officers  by  pairs  in  these  slave- 
trade  cruisers.  The  idea  is  perfectly  absurd;  and  any 
man  who  intends  seriously  to  propose  such  a  measure  as 
that,  means  nothing  less  than  to  get  rid  of  the  treaty 
altogether,  and  to  render  it  perfectly  inefficient."  He 
did  not  attach  any  importance  to  its  unpopularity  in 
France,  "  as  the  value  of  the  treaty  did  not  depend  on 
the  alacrity,  zeal,  and  ability  of  French  officers,  but  of 
our  own,  nothing  effectual  having  been  done  towards 
the  suppression  of  the  trade  by  the  naval  force  of  any 
country  except  that  of  Great  Britain."  To  show  the 
tenacity  with  which  he  adhered  to  the  right  of  search, 
we  may  quote  what  he  said  that  the  government  ought 
to  have  declared  to  France :  "  We  will  enter  into  no 
negotiation  with  you  upon  the  subject,  unless  we  con- 
template the  substitution  of  some  measure  for  the  right 
of  search ;  we  contemplate  no  such  substitution ;  and 
we  should  only  mislead  you  if  we  held  a  sham  negotia- 


48  VISITATION   AND    SEARCH. 

tion  with  you  to  enable  the  minister  of  the  day  to 
answer  an  opposition  speech." 1 

In  the  discussions  in  the  Chamber  of  Deputies  in  the 
session  of  184G,  the  compromise  treaty  was  for  from 
meeting  universal  satisfaction.  Mr.  Billault  said :  "  He 
could  not  admit  that  the  convention  of  May  29,  1845, 
had  replaced  the  commerce  of  France  under  the  national 
flag.  He  must  maintain  that  the  faculty  to  verify  the 
nationality  of  vessels  was  an  innovation  on  the  maritime 
rights  of  France,  it  was  contrary  to  their  fundamental 
principles ;  France  had  never  recognized  it,  and  the 
English  had  never  admitted  it  either."  The  Duke  de 
Broglie  had  said  in  1822,  that  "  nations  had  undoubtedly 
a  right  to  effect  the  verification  in  question  in  time  of 
war,  but  in  time  of  peace  the  right  ceased  to  exist." 
Benjamin  Constant  held  the  same  opinion,  and  in  1829, 
Laval  Moiitmorency  and  Polignac  protested,  in  two  de- 
spatches to  the  English  government,  against  all  attempts 
to  verify  the  nationality  of  vessels  sailing  under  French 
colors.  In  the  negotiations  preceding  the  treaty  of  1831, 
De  Broglie  and  Sebastiani  wrote  to  Lord  Palmerston,  de- 
claring that  "  vessels  sailing  under  the  French  flag  could 
not  be  regularly  seized  and  proceeded  against  unless  by 
French  cruisers."  The  acquiescence  of  Mr.  Dupin  would 
seem  to  have  been  obtained  only  because  "  he  supposed 
that  it  had  the  meaning  which  the  American  govern- 
ment had  attached  to  the  Ashburton  Treaty."2 

It  was  after  the  unanimous  action  of  the  Chambers, 
and  when  it  was  known  that  the  Quintuple  Treaty,  so  far 


1  Annual  Register,  1845,  p.  19]. 
*  Annual  Register,  184G,  p.  240]. 


VISITATION   AND    SEARCH.  49 

as  regards  France,  had  no  longer  any  vitality,  that  Lord 
Ashburton  was  deputed  as  a  special  minister  to  the 
United  States ;  but  though  the  "  right  of  search "  had 
been  put  directly  in  issue  in  the  correspondence  of  the 
preceding  year,  it  was  not,  much  to  the  regret  of  those 
who  believed  that  to  allow  such  a  pretension  to  remain 
unrebuked,  after  what  had  already  occurred,  could  not 
but  permanently  prejudice  our  cause,  discussed  during 
the  negotiation  which  resulted  in  the  treaty  of  August, 
1842.  The  attempt  to  waive  it  was  made  by  the  eighth 
articles  tipulating  for  the  maintenance,  by  each  party  for 
five  years,  of  a  separate  squadron  on  the  coast  of  Afri. 
ca;  and  by  a  subsequent  article  (the  ninth)  the  parties 
were  to  unite  in  remonstrances  with  other  powers,  in 
order  that  all  markets  should  be  shut  against  the  pur- 
chase of  African  negroes. 

The  eighth  article  would  seem  to  have  been  deduced 
from  a  system  that  had  been  initiated  as  early  as  1840, 
under  an  agreement  between  the  American  and  British 
commanding  officers  on  the  coast  of  Africa.  The  cor- 
respondence between  Mr.  "Webster  and  Commanders 
Bell  and  Paine  were,  indeed,  the  only  communications 
submitted  to  the  Senate  in  connection  with  this  branch 
of  the  treaty.  By  that  arrangement  the  cruisers  of  the 
respective  nations  were  to  detain  all  vessels  under  Amer- 
ican colors,  equipped  for  and  engaged  in  the  slave-trade  ; 
that,  if  proved  to  be  American  property,  they  should  be 
delivered  to  an  American  cruiser,  and  if  proved  to  be 
Spanish,  Portuguese,  Brazilian,  or  English  property,  to 
an  English  cruiser.  This  compact,  which  not  only  con- 
ceded the  English  pretensions  to  the  fullest  extent,  but 
might  well  have  brought  us  into  collision  with  other 
powers,  was  of  course  promptly  repudiated  by  President 

5 


50  VISITATION   AND    SEARCH. 

Van  Buren's  administration  as  being  not  only  unauthor- 
ized by  instructions,  but  contrary  to  the  established  and 
well-known  principles  and  policy  of  the  government.1 
It  was,  however,  adduced  by  Lord  Palmerston,  as  a  justi- 
fication for  British  interference  in  the  case  of  the 
American  vessels  whose  detention  had  been  the  subject 
of  complaint ; 2  and  he  gave  it  in  the  House  of  Com- 
mons, as  an  apology  for  those  orders  to  capture  our 
ships  which  Lord  Aberdeen  had  brought  to  the  notice 
of  parliament.3 

It  would  seem  from  the  declaration  of  Lord  Ashbur- 
ton  in  the  House  of  Lords  on  his  return  from  America, 
that  Mr.  Webster's  silence  on  the  subject  had  led  to  an 
extraordinary  delusion,  on  his  part,  as  to  the  importance 
attached  to  their  maritime  rights  by  the  government 
and  people  of  the  United  States.  This  was  the  more 
extraordinary,  considering  the  part  that  he  himself  had 
taken  in  the  House  of  Commons  as  Alexander  Baring, 
in  reference  to  the  Orders  in  Council,  prior  to  the  war 
of  1812.  In  the  discussion  on  the  Queen's  speech 
(February,  1843),  Lord  Ashburton  is  reported  to  have 
said  :  "  Undoubtedly  I  went  for  the  purpose  of  meeting 
this  question,  amongst  others,  which  were  the  subject 
of  complaint  If  there  was  nothing  done  on  the  sub- 
ject from  the  time  I  arrived  till  the  time  I  left,  it  was 
because  I  heard  nothing  but  satisfaction  expressed  at 
the  last  communication  of  Lord  Aberdeen.  I  left  the 
country  with  the  entire  conviction  that  the  ground 

1  Secretary  Paulding  to  Lieutenant  Paine,  June  4,  1840. 

s  Lord  Palmerston  to  Mr.  Stevenson,  August  5,  1841  ;  Same  to  Same, 
same  date;  Same  to  Same,  August  27,  1841.  Cong.  Globe,  Vol.  XI.  pp.  2,. 
5,7. 

8  Hansard's  Parl.  Deb.  ^.  s.  Vol.  LXV1II.  p.  1231. 


VISITATION   AND   SEARCH.  51 

taken  by  my  noble  friend  was  entirely  satisfactory."1 
It  is  not  easy  to  reconcile  this  declaration  with  what 
occurred  between  Lord  Ashburton  and  Mr.  King,  as 
stated,  in  his  place,  by  that  senator. 

The  injunction  of  secresy  having  been  removed 
from  their  proceedings,  we  learn  not  only  that  the 
action  of  the  Senate  on  the  treaty  was  not  unanimous, 
but  the  reasons  of  the  minority  are  given  in  their  pub- 
lished speeches. 

President  Tyler,  in  his  message,  August  11,  1842,  sus- 
tained the  provision  for  the  African  squadron,  on  the 
ground  that  it  was  a  substitute  for  visitation  and  search. 
u  The  examination  or  visitation,"  said  he,  "  of  the  mer- 
chant vessels  of  one  nation,  by  the  cruisers  of  another, 
for  any  purpose  except  those  known  and  acknowledged 
by  the  law  of  nations,  under  whatever  restraints  or  reg- 
ulations it  may  take  place,  may  lead  to  dangerous  results. 
It  is  far  letter  ly  other  means  to  supersede  any  supposed 
necessity  or  any  motive  for  stick  examination  or  visit.  .  .  .  . 
It  has  been  thought,  therefore,  expedient,  not  only  in 
accordance  with  the  stipulations  of  the  Treaty  of  Ghent, 
but  at  the  same  time,  as  removing  all  pretext  on  the 
part  of  others,  for  violating  the  immunities  of  the  Amer- 
ican Hag  upon  the  seas,  as  they  exist  and  are  defined 
by  the  law  of  nations,  to  enter  into  the  articles  now  sub- 
mitted to  the  Senate." 

Mr.  Benton  not  only  opposed  the  treaty  on  the  gen- 
eral consideration  arising  from  objections  to  all  entan- 
gling alliances,  especially  to  one  which  might  admit  the 
interposition  of  a  foreign  power  in  the  execution  of  our 
own  laws,  but  on  account  of  the  reason  assigned  by  the 

1  Hansard's  Parl.  Deb.  x.  s.  Vol.  LXVIII.  p.  314. 


52  VISITATION   AND    SEARCH. 

President  for  its  adoption.  "  It  stands  confessed,  that 
our  naval  and  diplomatic  alliance  with  Great  Britain  is 
the  price  which  we  pay  for  five  years'  exemption  from 
search,  and  for  the  favor  of  not  being  made  a  party  to 
the  quintuple  alliance.  The  alliance  with  Great  Britain 
is  a  substitute  for  these  penalties ;  and  a  more  igno- 
minious purchase  of  exemption  from  outrage  never  dis- 
graced the  annals  of  an  independent  nation."  ] 

To  the  same  effect  Mr.  Buchanan  said  :  "  These  arti- 
cles, then,  were  entered  into  for  the  purpose  of  remov- 
ing all  pretexts,  on  the  part  of  the  British  government, 
for  examining  and  searching  our  vessels  on  the  coast  of 
Africa,  These  articles  are  the  price  which  we  have 
agreed  to  pay  for  the  privilege  of  not  being  searched  by 
British  cruisers." 

He  further  objected :  "  The  treaty  itself  provides  that 
the  two  governments  shall  '  give  such  orders  to  the  offi- 
cers commanding  their  respective  forces  as  shall  enable 
them  most  effectually  to  act  in  concert  and  cooperation.' 
The  British  squadron  on  the  coast  of  Africa  will  nec- 
essarily be  larger  than  the  American;  and  it  will  be 
commanded  by  an  admiral  or  other  officer  of  high  rank. 
Although  no  direct  orders  may  be  issued  from  the 
British  commander  to  an  American  officer,  yet  when 
the  two  squadrons  are  bound  to  cooperate  with  each 
other,  influence  will  probably  be  substituted  for  com- 
mand. The  American  squadron  will,  in  effect,  become 
a  mere  subsidiary  force  to  that  of  England.  Upon  a  re- 
view of  all  the  considerations  involved  in  this  subject,  I 
feel  deeply  solicitous  that  the  pending  motion  should 
prevail,  to  strike  this  eighth  article  from  the  treaty.  The 

1  Congressional  Globe,  Vol.  XII.  Appendix,  p.  12. 


VISITATION   AND    SEARCH.  53 

honor  of  the  nation  requires  that  we  should  make  the 
amendment.  After  all  that  has  passed,  we  should  stand 
upon  the  sacred  principle  of  the  law  of  nations,  that  the 
American  flag,  waving  at  the  masthead  of  an  American 
vessel,  shall  protect  her  from  visitation  and  search  by 
British  cruisers." 1 

In  a  memorandum  apparently  furnished  by  him,  it  is 
stated:  "In  voting  upon  the  separate  articles  of  the 
treaty,  Mr.  Woodbury  voted  against  those  in  respect  to  the 
engagements  to  furnish  a  force  of  eighty  guns  towards 
suppressing  the  slave-trade.  This  arose  not  from  an 
unwillingness  to  do  every  thing  proper  for  abolishing 
that  trade  with  alacrity  and  efficiency,  but  from  an 
aversion  to  enter  into  an  entangling  alliance  with  any 
nation  for  any  object,  and  from  a  reluctance  to  seem 
compelled  by  England,  or  bound  to  her,  to  do  as  to  other 
countries  what  she  had  a  right  to  demand  or  enforce. 
The  attitude  appeared,  on  our  part,  one  of  inferiority 
and  submission,  or  of  subjection.  A  sovereign  nation 
ought  to  do  wha't  is  just  and  honorable  as  to  the  world 
at  large,  or  as  to  the  general  interests  of  humanity,  with- 
out the  intervention  or  guardianship  of  any  other 
nation."  2 

It  is  proper  to  notice  in  this  connection,  that,  while 
Mr.  Calhoun  would  have  preferred  an  informal  arrange- 
ment for  mutual  cooperation,  he  denied  that  the  one 
entered  into  was  an  acknowledgment  of  the  right  of 
search.  He  considered  it,  under  the  circumstances,  a 
surrender  of  that  claim  on  the  part  of  Great  Britain. 
"  It  is,"  he  said,  "  carefully  worded,  to  make  it  mutual, 


1  Congressional  Globe,  Vol.  XII.  Appendix,  p.  104. 

2  Ib.  p.  28. 

5* 


54  VISITATION   AND    SEARCH. 

but  at  the  same  time  separate  and  independent ;  each 
looking  to  the  execution  of  its  own  laws  and  obligations, 
and  carefully  excluding  the  supervision  of  either  over 
the  other,  and  thereby  directly  rebutting  the  object  of 
search  or  visitation." 

Mr.  Rives,  chairman  of  the  Committee  on  Foreign 
Relations,  contended,  that  the  "  vital  question  of  the  inde- 
pendence of  the  flag  having  been  disposed  of  in  the  une- 
quivocal denial  of  the  right  of  search,  in  the  President's 
message,  communicating  the  correspondence  between 
Mr.  Stevenson  and  Lord  Palmerston  and  the  Earl  of 
Aberdeen,  while  rejecting  the  plans  proposed  by  other 
governments  for  this  object,  we  should  come  forward 
with  one  of  our  own,  which  should  bring  the  most  effi- 
cient means  to  the  general  extirpation  of  this  odious 
traffic,  without  intrenching  on  the  liberty  of  the  seas 
and  the  established  principles  of  maritime  law."  "In 
virtue  of  the  arrangement  each  power  will  separately 
and  independently  exercise  the  necessary  supervision 
and  police  over  all  vessels  sailing  under  its  own  flag, 
neither  being  permitted  to  visit  or  search  the  vessels  of  the  other ; 
but  the  presence  of  the  two  squadrons,  always  on  the 
alert  and  acting  in  friendly  concert,  will  afford,  by  their 
vigilant  oversight,  complete  security  against  the  use  of 
the  flag  of  either  power  to  cover  the  prohibited  traffic, 
and  will,  at  the  same  time,  give  protection  to  the  mer- 
chant vessels  of  each,  when  necessary,  from  all  unlawful 
interruption  or  molestation." 2 

The  inference,  from  an  examination  of  the  debate  of 
the  Senate,  is,  that,  while  a  difference  of  opinion  existed 


1  Congressional  Globe,  Vol.  XII.  Appendix,  p.  52. 
s  Ibid.  p.  63. 


VISITATION   AND    SEARCH.  55 

as  to  the  expediency  and  propriety  of  purchasing  an 
exemption  from  its  exercise,  all  united  in  considering 
the  pretension,  on  the  part  of  Great  Britain,  to  a  right 
of  search,  as  utterly  untenable,  and  also  in  the  belief  that 
the  treaty  would,  at  least  during  its  continuance,  pre- 
vent the  assertion  of  such  a  claim. 

Among  those  who  voted  to  erase  the  eighth  article, 
which  motion  was  lost  by  a  vote  of  thirty-seven  to 
twelve,  were  Messrs.  Benton,  Buchanan,  Woodbury,  and 
Silas  Wright.1  The  treaty  finally  passed  by  a  vote  of 
thirty-nine  to  nine,2  including  in  the  minority  Messrs. 
Benton  and  Buchanan,  and  also  Mr.  Conrad  of  Louis- 
iana, who  was  subsequently  a  member  of  Mr.  Fillmore's 
cabinet. 

As  the  next  annual  message  of  the  President  (De- 
cember, 1842)  contained  a  renewed  disclaimer  of  the 
pretensions  of  England,  and  stated  that  "  the  ground  as- 
sumed in  the  former  message  had  been  maintained,  and 
all  pretence  removed  from  interference  with  our  com- 
merce, for  any  purpose  whatever,  by  any  foreign  govern- 
ment," Sir  Robert  Peel,  then  Prime  Minister,  on  occasion 
of  the  opening  of  parliament,  declared :  "  I  am  ready, 
whenever  it  is  necessary,  to  prove  that  the  doctrine  of 
the  right  of  visitation  laid  down  in  the  despatch  of  1841 
has  been  strictly  carried  out.  With  respect  to  the  trea- 
ty lately  signed  between  this  country  and  the  United 
States,  I  say  that  in  acting  upon  that  treaty  we  have 
not  abandoned  our  claim  to  the  right  of  visitation,  nor 
did  ^ve  understand  that  in  signing  that  treaty  the  United  States 
could  suppose  that  the  claim  was  abandoned.  On  the 


1  Cong.  Globe,  Vol.  XII  p.  1. 
s  Ibid.  p.  2. 


56  VISITATION   AND    SEARCH. 

contrary,  we  thought  that  a  step  in  advance  of  our  ob- 
ject had  been  taken,  when  the  United  States  consented 
to  send  a  naval  force  for  the  suppression  of  the  traffic 
in  slaves,  though  we  by  no  means  considered  or  accept- 
ed of  that  proceeding  as  an  equivalent  for  any  right 
which  we  claimed  with  respect  to  visitation."  In  the 
same  speech,  he  had  previously  alluded  to  what  he  con- 
sidered "  the  President's  misapprehension  that  Lord 
Aberdeen  had  insisted,  in  1841,  on  the  right  of  search, 
which  extends  to  the  cargo  and  destination  of  a  vessel, 
instead  of  the  right  of  visit  merely  to  ascertain  its  na- 
tionality." * 

In  the  discussions  to  which  Sir  Robert  Peel's  speech 
gave  rise  in  the  Senate  (February  23),  Mr.  Benton  thus 
referred  to  the  discrepancy  in  their  statements :  "  The 
evil  of  this  visitation  is,  then,  according  to  the  President, 
now  terminated.  According  to  Sir  Robert  Peel,  it  is 
not  terminated.  And  here  is  the  difference,  —  and  a 
serious  one."  u  What  then  ?  Shall  our  government  go 
on  blindfold  with  the  treaty  until  the  case  occurs,  until 
an  American  vessel  is  searched  by  a  British  cruiser, 
and  then  negotiate  or  fight  ?  Shall  the  government  do 
this,  —  and  it  is  the  fate  of  weakness  to  wait  for  events, 
instead  of  guiding  them,  —  or  shall  it  stop  and  clear  up 
the  difference  at  once  ?  "  He  was  in  favor  of  stopping 
all  action  under  the  clause  of  the  treaty  until  the  two 
governments  agreed  as  to  its  meaning.  General  Jack- 
son, he  remarked,  had  in  October,  1834,  directed  Mr. 
Forsyth  to  say  to  Sir  Charles  Yaughan,  on  this  very 
point  of  a  convention  for  the  suppression  of  the  slave- 
trade,  that  "  the  government  of  the  United  States  was 

1  Annual  Eegister,  1843,  p.  14]. 


VISITATION   AND    SEARCH.  57 

definitively  decided  not  to  become  a  party  to  any  con- 
vention on  the  subject  of  the  slave-trade."  "  This  was 
the  answer  of  General  Jackson,"  he  said.  "  It  is  an  Amer- 
ican answer."  Mr.  Benton  added,  that  he  would  not  go 
into  the  question  of  the  identity  between  search  and 
visitation.  "  Stopping  a  vessel  on  the  high  seas,  he  un- 
derstood to  be  firing  a-head  of  her  and  over  her  and 
then  through  her,  if  she  does  not  stop.  This  was  a  rude 
process,  even  if  for  an  innocent  purpose ;  and  he 
was  against  subjecting  American  vessels  to  be  so  stop- 
ped by  English  cruisers." 

Mr.  Archer,  who  had  become  chairman  of  the  Com- 
mittee on  Foreign  Relations,  did  not  contend  that  the 
right  of  visitation  had  been  formally  renounced ;  but 
only  that  all  occasion  for  the  exercise  of  that  right  had 
been  removed. 

Mr.  Allen  asked,  If  Great  Britain  did  not  surrender 
her  right  to  search  our  vessels,  why  did  we  agree  to 
spend  half  a  million  a-year  for  the  purpose  of  searching 
our  own  ?  According  to  Sir  Robert  Peel,  visitation  was 
not  now  confined  to  the  slave-trade,  but  extended  to  the 
whole  world  of  commerce.  He  considered  the  course 
of  England  a  declaration  that  the  treaty  was  to  be  ut- 
terly disregarded. 

Mr.  Calhoun  said  that  it  was  impossible  for  any  man 
to  read  the  treaty  and  say  that  the  right  of  visitation 
was  not  superseded  by  its  provisions,  —  certainly  the 
right  of  visitation  on  the  coast  of  Africa. 

Mr.  King  said  that  it  was  proposed  by  the  govern- 
ment to  adopt  a  course  which  would  supersede  the  ne- 
cessity of  British  visitation  to  ships  bearing  our  flag  on 
the  African  coast,  —  to  execute  the  right  of  search  our- 


58  VISITATION    AND    SEARCH. 

selves  in  relation  to  vessels  hoisting  our  flag.  The 
eighth  article  of  the  treaty  proves  that  the  arrangement 
was  thus  accepted  by  Lord  Ashburton,  as  superseding  the 
necessity  for  the  British  right  of  visitation ;  for  it  points 
out  the  very  mode  in  which  vessels  shall  be  visited.  lie 
had  seen  the  version  of  Sir  Robert  Peel's  speech  in  the 
London  Times.  It  bore  the  impression  that  he  main- 
tained not  only  the  British  right  of  visitation  in  the 
general  sense,  but  in  a  sense  which  would  extend  to  the 
coast  of  Africa.  If  such  was  his  meaning,  it  was  a  pal- 
pable violation  of  the  treaty.  We  had  agreed  to  do 
what,  as  an  independent  nation,  we  were  bound  to  do,  — 
to  carry  into  effect  our  own  laws,  and  therefore  there  no 
longer  remained  a  pretence  for  England  to  persevere  in 
her  claim  of  a  right  of  visitation.  Had  he  not  consid- 
ered this  point  clearly  settled,  he  never  could  have  voted 
against  striking  out  that  article  in  the  treaty.  He  firm- 
ly relied  on  its  being  a  suspension  of  the  British  claim, 
and  that  it  was  so  stipulated  by  Lord  Ashburton,  who 
had  himself  told  him  that  that  was  the  case. 

Mr.  Benton  said  the  treaty  had  been  ratified  upon  the 
President's  view  of  it;  and  if  there  was  an  attempt  to 
reconcile  the  message  to  Sir  Robert  Peel's  speech,  it 
would  be  a  fraud  on  the  senators  who  voted  for  it.1 

The  British  government,  lest  any  inference  should 
arise  that  their  late  plenipotentiary  had  disavowed  the 
right  of  search,  directed  their  minister,  Mr.  Fox,  to  read 
to  the  Secretary  of  State  a  despatch  from  Lord  Aber- 
deen, in  which  it  is  stated,  that,  "from  the  principles 
which  she  had  constantly  asserted,  and  which  are  re- 

1  Congressional  Globe,  Vol.  XII.  p.  330. 


VISITATION   AND    SEARCH.  59 

corded  in  the  correspondence  between  the  ministers  of 
the  United  States  in  England  and  herself  in  1841,  Eng- 
land had  not  receded,  and  woul^l  not  recede." 

The  purport  of  Lord  Aberdeen's  despatch  was  com- 
municated to  the  House  of  Representatives,  in  a  report 
of  the  Secretary  of  State  to  the  President,  of  27th  of 
February,  1843.  The  President,  in  his  message,  says: 
"I  regarded  the  eighth  article  as  removing  all  possible 
pretext  on  the  ground  of  mere  necessity,  to  visit  and 
detain  our  ships  upon  the  African  coast  because  of  any 
alleged  abuse,  by  stipulating  to  furnish  an  armed  force, 
regarded  by  both  the  high  contracting  parties  as  suffi- 
cient to  accomplish  that  object.  Denying,  as  we  did 
and  do,  all  color  of  right  to  exercise  any  such  general 
police  over  the  flags  of  independent  nations,  we  did  not 
demand  of  Great  Britain  any  formal  renunciation  of  her 
pretension ;  still  less  had  we  the  idea  of  yielding  any 
thing  ourselves  in  that  respect.  We  chose  to  make  a 
practical  settlement  of  the  question."  The  Secretary 
says  "  that  the  right  of  search  never  formed  the  sub- 
ject of  discussion  during  the  late  negotiation,  and  that 
no  concession  was  required  by  the  United  States,  nor 
made  by  Great  Britain." 

In  the  debate  on  the  ensuing  day  (February  28),  for 
carrying  the  treaty  into  effect,  Mr.  McKeon  objected  to 
it  as  not  settling  all  questions,  especially  the  claim  of 
the  right  of  visitation  set  up  by  Great  Britain,  and 
which  had  always  been  opposed  by  the  United  States. 
Since  the  last  war  the  British  government  had  been 
assiduously  endeavoring  to  extend  their  naval  power, 
and  to  acquire  the  right  to  superintend  the  police  of 
the  seas. 

Mr.  Gushing  sustained  the  construction  of  the  treaty, 


60  VISITATION   AND    SEARCH. 

as  given  by  the  President  in  opposition  to  that  of  the 
English  Prime  Minister.  On  the  despatches  of  Lord 
Aberdeen  and  the  speech  of  Sir  Robert  Peel,  he  assumed 
that  all  pretext  for  any  right  of  search  was  taken  away, 
except  what  was  conceded  by  that  treaty.  The  nego- 
tiations and  legislation  of  England,  with  regard  to  the 
right  of  search,  went  hand  in  hand.  The  act  of  parlia- 
ment in  1839,  giving  to  British  cruisers  unlimited  au- 
thority to  detain  and  search  vessels  suspected  in  any 
manner  of  being  engaged  in  the  slave-trade,  and  the 
Quintuple  Treaty,  contained  the  same  provisions  totidem 
verlis.  Sir  Robert  Peel  conceded  all  that  was  asked  in 
regard  to  the  belligerent  right,  and  also  as  regards  the 
conventional  or  reciprocal  right  of  search ;  but  said  that 
there  was  a  right  to  visit,  distinct  from  the  right  of 
search,  which  he  declared  would  be  assumed  and  exer- 
cised. In  all  books  of  international  law  the  right  was 
termed  "  droit  de  visite"  If  the  boarding  officer  might 
go  behind  the  flag,  why  not  also  behind  the  papers  to 
the  ship's  crew  and  cargo  ?  Either  the  assumed  right  of 
visitation  was  a  nullity,  or  it  was  the  right  of  search 
under  another  name.  Mr.  Gushing  therefore  denied 
the  construction  of  Sir  Robert  Peel,  and  affirmed  that  of 
the  President.  He  added :  "  He  was  of  opinion  that  we 
had  cause  to  regret  that  we  had  entered  into  any  senti- 
mental legislation.  The  only  delicate  point  in  this  mat- 
ter was  a  question  in  the  law  of  nations,  which  might 
arise  upon  the  piracy  act  of  Congress.  It  was  a  false 
step,  he  considered,  on  our  part,  to  enact  the  piracy  law 
with  regard  to  the  slave-trade." * 

Mr.  Webster's  instructions  to  Mr.  Everett  of  March 

1  Cong.  Globs,  Vol.  XII.  p.  368. 


VISITATION   AND    SEARCH.  61 

28,  1843,  examined  the  whole  question  with  an  ability 
and  an  extent  of  research  that  increase  our  regret,  that, 
from  any  circumstance,  our  country  should  not  have 
had  the  benefit  of  the  argument  at  the  opportune 
period. 

The  eighth  and  ninth  articles,  Mr.  Webster  considered 
a  mutual  stipulation  for  concerted  efforts  to  abolish  the 
slave-trade,  but  that  "  this  stipulation  has  no  other  effect 
on  the  pretensions  of  either  party  than  this :  Great  Brit- 
ain had  claimed  as  a  right  that  which  this  government 
could  not  admit  to  be  a  right,  and  in  the  exercise  of  a 
just  and  proper  spirit  of  amity,  a  mode  was  resorted  to 
which  might  render  unnecessary  both  the  assertion  and 
the  denial  of  such  claim." 

As  Lord  Aberdeen  had,  in  his  despatch  to  Mr.  Fox, 
stated,  "that,  if  in  the  exercise  of  this  right  (of  visit),  either 
from  involuntary  error  or  in  spite  of  every  precaution, 
loss  or  injury  should  be  sustained,  a  prompt  reparation 
would  be  afforded,"  Mr.  Webster  shows  the  inconsistency 
of  this  suggestion  with  the  claim  as  made  by  England. 
"  The  general  rule  of  law,"  he  says,  "  certainly  is,  that, 
in  the  proper  and  prudent  exercise  of  his  own  right,  no 
one  is  answerable  for  undesigned  injuries.  It  may  be 
said  that  the  right  is  a  qualified  right ;  that  it  is  a  right 
to  do  certain  acts  of  force  at  the  risk  of  turning  out  to  be 
wrongdoers,  and  of  being  made  answerable  for  all  dam- 
ages. But  such  an  argument  would  prove  every  tres- 
pass to  be  matter  of  right,  subject  only  to  just  responsi- 
bility. If  force  were  allowed  to  such  reasoning  in  other 
cases,  it  would  follow  that  an  individual's  right  in  his 
own  property  was  hardly  more  than  a  well-founded 
claim  for  compensation,  if  he  should  be  deprived  of  it. 
But  compensation  is  that  which  is  rendered  for  injury, 

6 


62  VISITATION   AND    SEARCH. 

and  is  not  commutation,  a  forced  equivalent,  for  acknowl- 
edged rights.  It  implies,  at  least  in  its  general  interpre- 
tation, the  commission  of  some  wrongful  act." 

And  again :  "  Any  detention  of  an  American  vessel  by 
a  British  cruiser  is  a  wrong,  a  trespass ;  -although  it  may 
be  done  under  the  belief  that  she  was  a  British  vessel, 
or  that  she  belonged  to  a  nation  which  had  conceded 
the  right  of  such  detention  to  the  British  cruisers,  and 
the  trespass  therefore  an  involuntary  trespass.  If  a  ship 
of  war,  in  thick  weather,  or  in  the  darkness  of  the  night, 
fire  upon  and  sink  a  neutral  vessel,  under  the  belief  that 
she  is  an  enemy's  vessel,  this  is  a  trespass,  a  mere  wrong ; 
and  cannot  be  said  to  be  done  under  any  right,  accom- 
panied by  responsibility  for  damages.  So  if  a  civil 
officer  on  land  have  process  against  one  individual,  and 
through  mistake  arrest  another,  this  arrest  is  wholly 
tortious;  no  one  would  think  of  saying  that  it  was 
done  under  any  lawful  -  exercise  of  authority,  subject 
only  to  responsibility,  or  that  it  was  any  thing  but  a 
mere  trespass,  though  an  unintentional  trespass.  The 
municipal  law  does  not  undertake  to  lay  down  before- 
hand any  rule  for  the  government  of  such  cases ;  and  as 
little,  in  the  opinion  of  the  government  of  the  United 
States,  does  the  public  law  of  the  world  lay  down  before- 
hand any  rule  for  the  government  of  cases  of  involun- 
tary trespasses,  detentions,  and  injuries  at  sea ;  except 
that  in  both  classes  of  cases  law  and  reason  make  a  dis- 
tinction between  injuries  committed  through  mistake 
and  injuries  committed  by  design;  the  former  being 
entitled  to  a  fair  and  just  compensation,  the  latter  de- 
manding exemplary  damages,  and  sometimes  personal 
punishment." 

As  a  conclusion  from  the  preceding  statement,  Mr. 


VISITATION   AND    SEARCH.  63 

Everett  is  instructed  that  the  government  of  the  United 
States  does  not  admit,  that,  by  the  law  and  practice  of 
nations,  there  is  any  such  thing  as  a  right  of  visit,  dis- 
tinguished by  well-known  rules  and  definitions,  from  a 
right  of  search."  l 

The  question  of  visitation  was,  after  the  receipt  of  this 
despatch  in  England,  a  copy  of  which  was  given  to  Lord 
Aberdeen,  several  times  alluded  to  in  parliament. 
Lord  John  Eussell  having,  on  one  occasion,  remarked 
that  the  President  had  said  that  the  meaning  of  the 
whole  article  was  a  total  abandonment  of  the  right 
of  visit,  Sir  Robert  Peel  replied :  "  From  the  despatch  of 
December  20,  1841,  government  would  never  depart; 
that  despatch  stated  in  the  most  conclusive  manner  their 
views,  and  it  was  Lord  Ashburton's  instructions ;  —  that 
despatch  was  unanswered.  Lord  Ashburton  had  no 
authority  to  concede  more."2 

Lord  Stanley  (now  Earl  of  Derby),  the  then  Minister 
for  the  Colonies,  on  the  2d  of  May,  speaking  on  a  vote  of 
thanks  to  Lord  Ashburton,  moved  by  Mr.  Hume,  said : 
"The  continued  excitement  on  the  question  of  the 
slave-trade  had  been  owing  to  the  insulting  terms  in 
which  Lord  Palmerston  had  insisted  on  rights  which,  in 
no  degree,  had  been  abandoned  by  Lord  Ashburton. 
Lord  Aberdeen  did  not  think  it  necessary  to  tell  the 
American  government  in  a  public  despatch,  'that  the 
English  government  was  not  bound  to  take  notice  of 
every  bit  of  bunting  sewed  up  into  the  form  of  an 
American  flag.'  Lord  Aberdeen  put  forth  'visit'  as  a 
right  which  should  be  exercised  at  the  peril  of  the 


1  Webster's  Works,  Vol.  VI.  p.  340. 

1  Hansard's  Parl.  Deb.  x.  s.  Vol.  LXVIII.  p.  324. 


64  VISITATION   AND    SEARCH. 

party  exercising  it.  If  by  a  detention  without  a  rea- 
sonable ground  of  suspicion,  a  British  vessel  stopped 
an  American  vessel,  even  proceeding  upon  an  illegal 
commerce,  which  they  had  no  right  to  stop,  the  Amer- 
ican government  could  claim  and  the  British  govern- 
ment would  make  compensation,  not  for  the  exercise, 
but  for  the  abuse,  of  the  right.  The  United  States 
did  not  recognize  the  right,  but  agreed  that  ( visit ' 
might  be  exercised,  subject  to  certain  conditions." 

Sir  Robert  Peel  said  the  difference  between  the  pres- 
ent and  former  government  is,  "If  we  visit  American 
vessels,  we  do  it  on  our  responsibility  and  are  liable  to 
make  compensation,  if  we  make  a  mistake.  Lord  Pal- 
merston  captured  American  vessels,  knowing  them  to 
be  bond  fide  American."1 

In  the  House  of  Lords,  thanks  to  Lord  Ashburton 
were  moved,  April  3,  by  Lord  Brougham,  who  by  the 
virulence  of  the  invective  with  which  he  assailed  him 
manifested  the  extent  of  General  Cass's  services  in 
defeating  the  Quintuple  Treaty.  The  Marquis  of  Lans- 
downe  opposed  the  motion,  because  after  the  President's 
message  he  could  not  think  the  question  of  search  put 
on  satisfactory  ground.  He  trusted  that  the  govern- 
ment \vould  persevere  in  claiming  the  right  to  visit  all 
vessels,  for  the  purpose  of  seeing  whether  the  flag  they 
bear  is  genuine  or  not.  If  instructions  to  that  effect 
are  given,  it  will  bring  the  matter  to  an  issue.  "  I  think 
that  it  should  be  known  in  America  as  it  is  here,  that 
our  cruisers,  when  they  meet  an  American  flag,  have 
the  power,  when  they  see  just  cause  of  suspicion,  to 
stop  the  vessel  for  the  purpose  of  searching  it.  Till 

1  Hansard's  Parl.  Deb.  N.  s.  Vol.  LXVIH.  p.  1190. 


VISITATION  AND    SEARCH.  65 

I  see  the  President  admitting  that  he  considers  *such 
suspicion  a  sufficient  justification  for  the  right  of  search, 
I  cannot  see  that  the  disposition  of  men  to  peace  and 
good-will  will  be  promoted  by  this  negotiation.  Nothing 
is  so  likely  to  disturb  it  as  a  confused  understanding 
of  this  important  right  in  America." 

Lord  Brougham.     "  The  President  admits  the  right." 
Lord  Lansdowne.     "  He  does,  but   not  the   exercise 
of  it." 

The  Earl  of  Aberdeen.  "  I  confess,  though  I  always 
thought  it  the  greatest  object  of  this  country  to  obtain 
a  mutual  right  of  search,  on  that  point  this  treaty  is 
a  very  considerable  advance  towards  the  abolition  of 
the  traffic.  The  plan  was  proposed  by  the  last  govern- 
ment, through  Mr.  Fox,  in  1839.  When  we  visited  an 
American  vessel,  it  was  because  we  thought  it  belonged 
to  a  State  that  had  given  us  permission  by  treaty. 
Without  such  treaty  we  have  no  right  to  visit  any  ves- 
sel. The  President  argues  that  we  do  not  claim  it  as  a 
perfect  right.  It  is  not  such  a  right  as  all  nations  have 
in  apprehending  pirates,  but  it  is  a  right,  the  exercise 
of  which  is  accorded  by  treaty.  And  it  is  because  we 
have  reason  to  believe  that  a  vessel  belongs  to  a  coun- 
try with  which  we  have  a  treaty  that  we  have  any 
ground  for  visiting  her,  with  a  view  of  ascertaining  her 
nationality.  Now,  such  being  the  nature  of  our  preten- 
sions, we  shall  adhere  to  them  in  spite  of  all  opposition. 
I  must  say  that  I  think  the  United  States  had  cause  to 
complain  of  the  pretensions  put  forth  at  no  distant 
period,  and  enforced.  Before  exercising  the  right,  there 
must  be  ground  for  suspecting  that  the  vessel  is  engaged 
in  the  slave-trade,  and  belongs  to  a  state  with  which  we 
have  a  treaty  of  search.  If  an  American  is  visited, 

6* 


66  VISITATION   AND    SEARCH. 

reparation  must  be  made.  The  American  squadron  will 
have  no  right  to  visit  any  but  American  vessels." 

Lord  Campbell  contended  that  the  right  of  visit  was 
a  perfect  right,  and  that  it  existed  by  the  law  of  nations. 
He  said  that  Lord  Stowell  had  reference  to  the  right  of 
search,  and  not  the  right  of  visit.  He  regarded  the 
eighth  article  as  a  retrogression,  and  that  it  effected 
nothing. 

Lord  Denman  would  not  enter  into  the  distinction 
between  search  and  visit 9  but  he  stood  up  for  the  right  of 
prevention.1 

The  instructions  issued  by  the  British  government 
were  dated  12th  of  December,  1843,  and  were  conse- 
quently drawn  in  accordance  with  Lord  Aberdeen's  ex- 
position of  the  right  of  visit,  and  though,  wThen  cruis- 
ing in  cooperation  with  the  United  States  squadron, 
the  commanders  are  told  that  they  "will  do  right"  to 
leave  to  the  American  commander  to  take  the  first  step 
to  visit  a  vessel  having  the  colors  of  his  country,  and 
ascertain  her  right  to  wear  that  flag ;  yet  they  are  to 
make  the  search  themselves  if  they  suppose  the  delay 
of  our  officers  will  enable  her  to  escape  unvisited.  The 
British  officers  are  authorized  to  "  require  the  suspected 
vessel  to  be  brought  to,  in  order  that  the  nationality 
may  be  ascertained,"  and  they  are  instructed  that  they 
"  will  be  justified  in  enforcing "  the  order  by  coercive 
measures,  if  necessary;  and  as  they  are  impliedly 
directed  to  proceed  to  the  most  minute  searches,  if  not 
satisfied  by  the  "vessel's  papers  or  other  proof  of 
her  nationality,"  it  is  obvious  that  it  has,  at  all  times, 
depended  on  the  greater  or  less  stringency  with  which 

1  Hansard's  Parl.  Deb.  Vol.  LXVIH.  p.  604.  . 


VISITATION  AND   SEARCH.  67 

the  orders  (complicated  as  they  are  with  the  instruc- 
tions relating  to  vessels  of  countries  with  which  Eng- 
land has  treaties  according  search)  are  carried  out, 
whether  collisions  took  place  or  not.1 

In  the  message  of  December,  1844,  President  Tyler 
refers  to  the  cases  of  seizures  and  detentions  of  American 
ships  on  the  coast  of  Africa,  "  upon  the  mistaken  suppo- 
sition, indulged  in  at  the  time  the  wrong  was  committed, 
of  their  being  engaged  in  the  slave-trade,"  and  for  which 
England  had  admitted  her  obligation  to  make  compen- 
sation. Several  reclamations  also  grew  out  of  the  West 
India  emancipation,  and  the  attempt  to  apply  to  vessels 
of  the  United  States,  having  slaves  on  board,  involun- 
tarily entering  the  ports  of  the  British  islands,  through 
stress  of  weather,  mutiny,  or  otherwise,  the  new  muni- 
cipal code,  and  thus  to  establish  a  police  over  vessels 
passing  from  one  American  port  to  another. 

This  matter  had  been  ably  discussed  in  the  Senate  of 
the  United  States  by  Mr.  Calhoun  in  March,  1842,  and 
the  resolutions  proposed  by  him,  declaring  the  seizure  of 
slaves  under  those  circumstances  a  violation  of  the  law  of 
nations,  were  unanimously  passed.  The  British  govern- 
ment granted  compensation  in  the  cases  where  the  slaves 
were  liberated  before  the  passing  of  the  act  abolish- 
ing slavery,  but  refused  it  for  those  that  arose  subse- 
quently. No  provision  was  made  for  the  latter  cases  by 
the  Treaty  of  1842,  though  Mr.  Webster  addressed  Lord 
Ashburton  a  note  on  the  subject,  under  date  of  August 
1,  1842.  They  were,  however,  with  those  arising  from 
seizures  on  the  coast  of  Africa,  compensated  for,  under 
the  convention  of  1853  between  the  United  States  and 

1  Cong.  Doc.  28th  Cong.  2d  Sess.  H.  R,  No.  150,  p.  116. 


68  VISITATION  AND   SEARCH. 

Great  Britain,  for  the  settlement  of  outstanding  claims 
of  the  citizens  of  either  country  against  the  other,  that 
had  arisen  since  the  Treaty  of  Ghent.  And  thus  the 
principle  was  established  by  an  international  tribunal, 
binding  at  least  as  between  England  and  the  United 
States,  that,  as  vessels  of  a  country,  when  on  the  ocean 
and  beyond  the  territorial  limits  of  any  other  nation, 
are  subject  to  its  exclusive  jurisdiction,  so  they  only  pass 
under  the  jurisdiction  of  a  foreign  state,  when  they 
voluntarily  enter  its  ports.  It  was  distinctly  decided  in 
the  case  of  the  "  Creole,"  which,  as  being  connected  both 
with  murder  and  mutiny,  had  attracted  particular  atten- 
tion, that,  as  she  was  on  a  voyage  sanctioned  and  pro- 
tected by  the  laws  of  the  United  States,  and  by  the  law 
of  nations,  her  right  to  navigate  the  ocean  could  not  be 
questioned,  nor,  as  growing  out  of  that  right,  the  right 
to  seek  shelter  or  enter  the  ports  of  a  friendly  power,  in 
case  of  distress  or  any  unavoidable  necessity.  A  vessel 
navigating  the  ocean  carries  with  her  the  laws  of  her 
own  country,  so  far  as  relates  to  the  persons  and  prop- 
erty on  board,  and,  to  a  certain  extent,  retains  those 
rights  even  in  the  ports  of  the  foreign  nations  she  may 
visit.1 

At  different  periods,  going  back  as  far  as  1823,  our 
flag  had  been  subjected  to  annoyances,  in  reference  to 
the  fisheries  on  the  eastern  coast  of  America,  secured  to 
us  by  the  convention  of  1818,  which  was  a  compromise 


1  Report  of  Commission  of  Claims,  p.  244.  Of  the  $329,734  awarded 
to  American  claimants,  $301,848  were  for  cases  referred  to  in  the  text.  See 
also,  on  .this  subject,  Calhoun's  Resolutions  and  Speeches,  Congressional 
Globe,  Vol.  VIII.  Appendix,  266  ;  Wheaton's  Elements  of  International 
Law,  LaAvrence's  Introduction,  p.  cxxix. ;  Webster's  Works,  Vol.  VI.  p.  303  ; 
Benton's  Thirty  Years,  Vol.  II.  p.  282. 


VISITATION  AND    SEARCH.  69 

of  our  claim  under  the  Treaty  of  1783.  There  had  been 
repeated  diplomatic  discussions  on  the  subject,  and  Mr. 
Forsyth,  in  instructing  Mr.  Stevenson,  February  20, 
1841,  stated  as  the  point  of  difference,  that  the  provin- 
cial authorities  assume  a  right  to  exclude  American 
vessels  from  all  their  bays,  including  the  Bays  of  Fundy 
and  Chaleurs,  and  to  prohibit  their  approach  within 
three  miles  of  a  line  drawn  from  headland  to  headland, 
while  the  American  fishermen  believe  that  they  have  a 
right  to  take  fish  anywhere  within  three  miles  of  land. 
Certain  relaxations  in  the  pretensions  of  England,  were, 
in  1845,  announced  by  Lord  Aberdeen  to  Mr.  Everett ; 
but  the  whole  subject  obtained  renewed  importance  in 
1852,  on  account  of  a  British  force  being  ordered  to 
that  coast  to  protect  the  claims  of  the  colonists,  and  a 
correspondence  involving  the  original  merits  of  the  con- 
troversy was  carried  on  at  London  and  Washington, 
without  result.1  The  Treaty  of  June,  1854,  has  settled 
the  rights  of  the  respective  parties  on  a  new  basis,  but 
as  regards  previous  reclamations,  as  in  the  case  of  the 
vessels  driven  into  West  India  ports,  the  decision  of  the 
commission,  under  the  convention  of  1853,  was  favor- 
able to  the  United  States.  The  arbiter,  in  awarding 
compensation  for  a  vessel  employed  in  fishing  in  the 
Bay  of  Fundy,  that  had  been  captured,  in  1843,  and 
condemned  in  a  British  Vice- Admiralty  Court,  decided 
"  that  the  Bay  of  Fundy  is  not  a  British  bay,  nor  a  bay 
within  the  meaning  of  the  words,  as  used  in  the  Treaties 
of  1783  and  1818." 2 

The  course  adopted  in  1845,  and  pertinaciously  ad- 


1  Wheaton's  Elements,  Lawrence's  Ed.  p.  238,  note. 

2  Report  of  Commission  of  Claims,  p.  186. 


70  VISITATION   AND    SEARCH. 

hered  to,  with  regard  to  Brazil,  presents  one  of  the 
strongest  cases  that  can  well  be  imagined,  of  an  attempt 
to  control,  by  municipal  legislation,  matters  exclusively 
belonging  to  a  foreign  and  independent  sovereignty. 
This  case  was  even  more  flagrant  than  that  of  Portugal 
in  1839.  The  Treaty  of  1817  with  Portugal,  by  which 
Brazil  had  bound  herself  in  1826,  had  expired  by  the 
operation  of  its  own  provisions,  in  March,  1845,  and  that 
fact,  including  the  termination  of  the  mixed  commissions, 
as  the  Emperor  announced  to  the  legislative  chambers, 
had  been  fully  notified  to  the  British  government.  In 
August  of  that  year  an  act  of  parliament,  8  &  9  Viet. 
c.  122,  was  passed,  by  which  jurisdiction  was  given  to 
the  British  courts  of  admiralty  to  take  cognizance  of 
any  vessel  carrying  on  the  African  slave-trade  in  contra- 
vention of  the  Treaty  of  1826,  and  the  same  provisions 
were  applied  to  Brazilian  vessels  as  to  British-owned. 
The  pretence  for  this  usurpation  is  stated,  in  the  statute, 
to  be  derived  from  the  provision  of  the  convention,  that, 
at  the  expiration  of  three  years  from  its  ratification,  "  it 
should  not  be  lawful  for  the  subjects  of  the  Emperor  of 
Brazil  to  be  concerned  in  carrying  on  the  slave-trade 
under  any  pretext  whatever,  and  that  the  carrying  on 
of  such  trade  after  that  period  by  any  subject  of  his 
Imperial  Majesty  should  be  deemed  and  treated  as 
piracy."1  Under  this  act  English  cruisers  have  been  au- 
thorized to  enter  the  creeks  and  harbors  of  Brazil,  cut 
out  any  vessel  that  they  might  deem  a  slaver,  and  sub- 
ject her  to  be  tried,  not  even  by  a  mixed  tribunal, 
but  by  one  exclusively  English.  And  yet,  though  the 
slave-trade  with  Brazil  has  confessedly  ceased,  Lord 

1  British  Statutes  at  Large,  Vol.  VILL  p.  1059. 


VISITATION   AND    SEARCH.  71 

Palmerston  last  year  objected  to  the  repeal  of  this 
statute.1 

Nor  is  it  an  unimportant  matter  to  notice  the  claim, 
put  forth  in  this  connection,  on  behalf  of  England,  that 
Brazil,  having  once  agreed  with  her  by  treaty  that  the 
slave-trade  should  be  deemed  and  treated  as  piracy,  she 
had  a  right,  after  the  expiration  of  the  treaty,  to  punish 
as  pirates  by  the  common  law  of  nations,  all  Brazilians 
who  might  be  engaged  in  the  traffic.  Indeed,  one  of 
her  commentators  on  public  law  contends  that  Eng- 
land dealt  very  leniently  with  Brazil,  in  only  capturing 
and  condemning  her  ships  and  cargoes,  instead  of  trying 
her  subjects  in  her  courts  and  hanging  them  for  piracy 
by  virtue  of  an  act  of  parliament.2 

The  right  to  arrest  pirates  can  have  no  connection 
with  the  present  inquiry.  Cases  of  that  nature,  not  grow- 
ing out  of  the  statutory  enactments  against  the  slave- 
trade,  do  not  often  occur,  and  when  they  do,  it  does  not 
appear  that  the  guilty  parties  have  obtained  any 
impunity  from  the  principles  adopted  by  the  United 
States  in  reference  to  the  flag.  No  one  would  allege 
that  any  suspicion  of  ordinary  piracy  gave  rise  to  the 


1  Hansard's  Parl.  Deb.  Vol.  CXLV.  p.  309.  This  disregard  of  the  sov- 
ereignty of  an  independent  State  has  not  remained  a  dead  letter  on  the  stat- 
ute-book. Among  other  cases  of  the  unwarrantable  exercise  of  British 
power,  in  January,  1850,  the  Cormoran,  an  English  frigate,  took  in  sight  of 
land  and  burned,  without  any  process  of  law,  with  its  cargo  and  papers,  after 
having  landed  the  crew,  the  Brazilian  ship  Santa  Cruz,  which  had  left  St. 
Sebastien  on  the  2d  of  the  month,  bound  to  Rio  de  Janeiro.  To  a  complaint 
of  the  Brazilian  minister  of  foreign  affairs,  the  British  charge  d'affaires  replied, 
that  the  Santa  Cruz  had  been  taken  for  being  engaged  in  the  illicit  traffic 
of  slaves,  and  had  been  destroyed,  because  she  was  found  incapable  of  keep- 
ing the  sea  till  she  could  be  brought  to  the  next  vice-admiralty  court.  —  De 
Cussy,  Droit  Maritime,  torn.  2,  p.  270. 

*  Wildman's  International  Law,  Vol.  II.  p.  152. 


72  VISITATION   AND    SEARCH. 

detentions  and  seizures  which  led  to  the  discussions  of 
1841,  nor  has  it  been  supposed  that  the  collisions  in 
the  Gulf  of  Mexico,  which  have  been  the  subject  of 
recent  discussion,  arose  from  any  apprehension  of  a 
return  of  the  aggressions  on  the  commerce  of  the  world, 
effectually  suppressed  thirty  years  ago  by  the  American 
navy,  though  not  without  a  technical  violation  of  the 
territorial  sovereignty  of  Spain,  rendered  necessary  by 
her  unpardonable  neglect  to  maintain  the  police  of  her 
own  coasts.  But  the  right  to  detain  a  vessel  on  sus- 
picion of  piracy,  even  with  the  peril  of  being  deemed  a 
trespasser  in  case  the  suspicion  proves  groundless,  is 
confined  to  those  charged  with  that  offence,  as  known 
to  the  law  of  nations,  —  to  those  who  are  universally 
regarded  as  hostes  liumani  generis.  Pirates  are  the  enemies 
of  every  country  and  at  all  times,  and  as  with  them 
there  is  no  state  of  peace,  they  are  always  subject  to 
the  extreme  rights  of  war,  among  which  is  that  of  visi- 
tation and  search. 

No  justification,  on  the  plea  of  searching  for  pirates, 
can,  however,  be  offered  for  detaining  an  American  ves- 
sel, on  suspicion  of  her  belonging  to  a  country,  which 
had  granted  to  England  a  reciprocal  right  of  search,  and 
of  her  being  engaged  in  the  slave-trade,  to  which,  by  a 
legislative  perversion  of  language,  the  term  piracy  is 
applied.  This  is  a  proposition  which  it  is  important 
not  to  overlook.  The  principle  that  no  two  or  more 
nations  can,  by  an  agreement  between  themselves,  im- 
pose disabilities  on  another  nation,  not  a  party  to  the 
compact,  or  create  new  rights  in  their  own  favor,  was 
sufficiently  elucidated,  when  a  contrary  doctrine  was 
assumed  by  Lord  Aberdeen.  It  need  scarcely  be  af- 
firmed, that  nothing  that  would  not  have  justified  or 


VISITATION   AND    SEARCH.  73 

palliated  the  detention  of  a  vessel  before  the  anti-slavery 
treaties  were  concluded,  and  when  the  slave-trade  was 
held  a  legitimate  commerce  by  all  the  world,  can  now 
authorize  the  stopping  of  a  foreign  merchantman. 
Hautefeuille  alludes  to  it  as  a  proof  of  the  little  practical 
difficulty  likely  to  arise  from  seizures  based,  bond  fide, 
on  the  suspicion  of  piracy,  that  no  treaty  refers  to  the 
subject.1 

Nor  can  the  claim  of  visitation  on  the  high  seas  be 
sustained  by  the  practice  which  has  prevailed  of  exer- 
cising an  inquiry  for  fiscal  or  defensive  purposes,  in  the 
neighborhood  of  the  coast  and  beyond  the  prescribed 
jurisdictional  limits  of  a  nation,  such  as  the  hovering 
laws  both  of  the  United  States  and  England  authorize.2 
"  This,"  says  Lord  Stowell,  "  has  nothing  in  common  with 
a  right  of  visitation  and  search  upon  the  unappropri- 
ated parts  of  the  ocean."  And  he  adds,  "  a  recent  Swed- 
ish claim  of  examination  on  the  high  seas,  though  con- 
fined to  foreign  ships  bound  to  Swedish  ports,  and 
accompanied  in  a  manner  not  very  consistent  or  intel- 
ligible with  a  disclaimer  of  all  right  of  visitation,  was 
resisted  by  (the  British)  government  as  unlawful,  and 
was  finally  withdrawn." 3 

That  no  apprehended  inconvenience,  on  account  of 
the  revenue  or  even  public  safety,  can,  in  time  of  peace, 
give  a  rigU  of  visitation  on  the  high  seas,  although  near 
the  coasts  of  a  country,  if  beyond  the  ordinary  mari- 
time jurisdiction,  but  that  such  power  can  only  be  exer- 
cised by  the  positive  or  tacit  permission  of  the  State 
to  whose  subjects  the  merchantman  belongs,  is  well 

1  Hautefeuille  —  Droits  des  Nations  Neutres,  torn.  3,  p.  489. 

2  See  United  States  Statutes  at  Large,  Vol.  I.  p.  700. 

3  The  Louis,  Dodson's  Admr.  Reports,  Vol.  II.  p.  246. 

7 


74  VISITATION   AND    SEARCH. 

shown  by  an  eminent  civilian  of  Doctors'  Commons,  in 
an  opinion  which  he  has  recently  furnished  for  the 
guidance  of  a  foreign  government. 

Having  alluded  to  the  American  case  of  the  Marianna 
Flora,  as  establishing  the  principle  that  the  State  which 
authorizes,  by  her  municipal  laws,  her  cruisers  to  effect 
such  seizures,  incurs  a  responsibility  towards  foreign 
powers  in  executing  such  laws,  and  that  if  any  other 
State  should  remonstrate,  and  resist  their  application, 
she  must  withdraw  her  claim  to  enforce  them,  Doctor 
Twiss  adds:  "In  ordinary  cases,  indeed,  where  a  mer- 
chant ship  has  been  seized  on  the  high  seas,  the  sover- 
eign whose  flag  has  been  violated  waives  his  privilege, 
considering  the  offending  ship  to  have  acted  with  mala 
fides  towards  the  other  State  with  which  he  is  in  amity, 
and  to  have  consequently  forfeited  any  just  claim  to  his 
protection."  As,  however,  in  the  case  before  him,  Sar- 
dinia did  not  assent,  but  claimed  a  restitution  of  the 
vessel  taken  under  her  mercantile  flag,  the  King  of 
Naples  cannot,  he  asserts,  set  up  the  provisions  of  his 
own  laws  as  an  answer  to  a  claim  made  under  the  law 
of  nations.  Lest  it  might  be  supposed,  that,  in  this  view 
of  the  law,  a  State  would  be  helpless  to  check  or  punish 
outrages  on  its  coasts  which  do  not  amount  to  piracy 
committed  by  vessels  under  the  mercantile  flag  of  an- 
other State,  if  such  vessels  can  only  escape  in  time  on 
the  high  seas,  before  the  cruisers  of  that  State  fall  in 
with  them ;  the  remedy  for  such  an  anomaly,  which,  he 
says,  is  in  practice  more  ideal  than  real,  is  found  in  the 
comity  of  nations.  The  privilege  of  the  flag  is  the  privi- 
lege of  the  State ;  and  when  there  is  mala  fides  in  the 
wrongdoers,  the  State  through  courtesy  waives  its  privi- 
lege, and  either  permits  the  State  which  has  been  in- 


VISITATION   AND    SEARCH.  75 

jured  to  avenge  the  breach  of  its  laws,  through  its  own 
tribunals,  or  will  assist  it  to  obtain  redress  against  the 
wrongdoers  before  the  courts  of  their  own  country,  if 
they  have  in  any  way  made  themselves  amenable  to 
punishment  for  a  breach  of  their  own  laws.1 

That  the  right  of  visitation  and  search,  as  it  was 
asserted  by  Lord  Palmerston  and  Lord  Aberdeen,  cannot 
exist,  in  time  of  peace,  independent  of  treaty,  is  estab- 
lished as  well  by  institutional  writers  as  by  the  practice 
of  nations.  It  would,  of  course,  be  in  vain  to  seek  for 
authorities  at  the  time  that  England  herself  was  looking 
to  conventional  concessions  as  the  sole  means  for  its 
exercise,  and  instructing  her  cruisers,  that,  being  a 
belligerent  right,  it  had  ceased  with  the  war. 

The  American  publicist  Wheaton  (who  is  himself  the 
author  of  a  standard  work  on  the  "  Eight  of  Search," 
and  whose  "Elements  of  International  Law"  is  now 
received  as  the  text-book  in  the  great  law  schools  of 
England),  writing,  as  minister  at  Berlin,  to  the  Secretary 
of  State,  July  6,  1843,  says:  "The  right  claimed  (by 
the  English)  comes  to  this,  —  a  right  to  seize  and  send 
in  for  adjudication,  before  the  court  of  the  captor's 
country,  subject  to  the  payment  of  costs  and  damages, 
in  case  of  seizure  without  reasonable  cause.  I  do  not 
know  what  Lord  Aberdeen  and  Sir  Robert  Peel's  admi- 
ralty lawyers  may  have  told  them ;  but  I  defy  them  to 
show  a  single  passage  of  any  institutional  writer  on 
public  law,  or  the  judgment  of  any  court,  by  which  that 
law  is  administered,  either  in  Europe  or  America,  which 
will  justify  the  exercise  of  such  a  right  on  the  high  seas 
in  time  of  peace." 2 

1  Opinion  of  Dr.  Travers  Twist,  London  Times,  April  1,  1858. 

2  Wheaton's  Elements,  Lawrence's  Introduction,  p.  cxxiv. 


70  VISITATION   AND    SEARCH. 

Among  the  French  writers  of  established  reputation 
who  have  alluded  to  the  British  pretensions  are  Haute- 
feuille,  Ortolan,  and  Masse.  The  liberal  views  of  the 
first-named  commentator  as  to  the  immunity  of  mer- 
chant vessels,  even  as  against  belligerents,  have  been 
already  noticed.  His  distinction  between  "visitation 
and  search "  (la  visits  et  la  recherche],  it  will  be  remem- 
bered, is  for  the  benefit,  and  not  for  the  detriment,  of 
the  neutral. 

Hautefeuille  says  that  the  right  of  visit  (even  restricted 
as  it  is  by  him,  in  war)  cannot  exist  in  peace,  being  a 
power  conceded  to  the  belligerents  for  the  exercise  of 
belligerent  rights.  The  special  treaties  which  grant  the 
reciprocal  right  in  time  of  peace,  go  beyond  what  he 
deems  even  the  belligerent  claim,  and  accord  a  right  of 
search.  He  considers  the  treaty  with  France,  of  1845, 
an  illustration  of  the  right  of  visit,  as  he  defines  it,  while 
those  of  1831  and  1833  were  instances  of  the  right  of 
search.  It  can  hardly  be  necessary  to  mention,  that  all 
conventions  of  this  character  are  earnestly  opposed  by 
him  as  containing  (even  that  of  1845)  flagrant  violations 
of  the  principles  of  international  law.  "  In  time  of 
peace,"  he  says,  "the  flag  of  a  ship  is  the  sign  of  its 
nationality,  not  merely  primd  facie,  but  absolutely,  for 
all  foreign  ships.  The  cruisers  of  the  nation  to  whom 
the  flag  belongs  have  exclusive  jurisdiction  over  it,  in- 
cluding the  power  of  verification  and  inquiry  (enqu&te}. 
The  only  exception  is  in  case  of  piracy.  As  to  the 
words, '  the  slave-trade  and  other  unlawful  commerce,'  of 
which  the  treaty  of  1845  speaks,  they  are  without  mean- 
ing. The  slave-trade  is  not  an  unlawful  commerce  on 
the  part  of  a  Frenchman,  except  so  far  as  French  laws 
make  it  unlawful.  It  is  only  so  with  respect  to  France. 


VISITATION   AND    SEARCH.  77 

What  I  say  as  to  the  slave-trade  I  say  of  all  other  kinds 
of  commerce,  without  exception.  In  time  of  peace  there 
is  not  any  unlawful  commerce  as  regards  foreign  States, 
unless  the  individual  or  the  vessel  that  is  carrying  on 
the  trade  is  within  the  custom-house  limits,  upon  the 
territory  and  under  the  jurisdiction  of  the  foreign 
State.  This  principle  is  absolute,  and  admits  of  no 
exception."  Visit,  in  time  of  peace,  has  only  been 
invented,  he  remarks,  by  England,  since  1815,  to  injure 
the  navigation  of  other  countries,  and  is  an  outrage  on 
the  national  dignity  and  independence.1 

Masse,  cited  by  Hautefeuille,  says,  that,  "  whatever 
may  be  the  object  of  visit,  in  time  of  peace,  it  is  always 
an  act  of  police,  which  cannot  be  exercised  by  one 
nation  towards  another,  because  it  implies,  on  the  part 
of  the  visitor,  a  sovereignty,  incompatible  with  the 
reciprocal  independence  of  nations.  Furthermore,  two 
nations  cannot  advantageously  grant  one  another,  by 
special  conventions,  the  reciprocal  right  of  visit  in  peace. 
The  appreciation  of  the  utility  of  conventions  of  this 
nature  is  undoubtedly  a  political  question.  But  it  is 
certain,  that,  as  such  conventions  imply  an  abandonment 
of  the  sovereignty,  which  is,  in  its  very  essence,  inalien- 
able, and  incapable  of  being  parted  with,  the  two  nations 
which  have  mutually  given  up  their  rights  can  only 
have  made  a  temporary  abandonment  of  them,  which  no 
lapse  of  time  can  render  definitive." 2 

Ortolan  says  that  he  agrees  with  all  the  authors  on 
international  law,  and  especially  with  the  American 
publicist,  Wheaton,  that  "the  right  of  visitation  and 


1  Hautefeuille  —  Droits  des  Nations  Neutres,  torn.  3,  p.  471-487. 

2  Masse  —  Droit  Commercial,  liv.  2,  tit.  1,  c.  2,  §  2. 

7* 


78  VISITATION   AND    SEARCH. 

search  cannot  exist  in  peace,  except  by  special  treaty." 
He  likewise  says  that  it  is  an  international  usage  very 
often  practised,  for  ships  that  meet  at  sea  to  hoist  their 
flag  to  show  their  nationality,  and  to  interchange  salu- 
tations. Speaking  of  this  usage,  he  had  said,  in  his 
first  edition,  "that  there  existed  in  favor  of  ships  of  war, 
in  reference  to  merchantmen,  a  right  of  inquiry  as  to 
the  flag  (droit  d'  enqudte  du  pavilion}.  By  this  expression, 
which  is  probably  new,  the  word  right  (droit}  should 
not  be  taken  in  its  most  extended  sense.  But  when 
this  right  is  exercised  by  a  ship  of  war  in  reference  to 
a  foreign  merchantman,  it  does  not  precisely  mean  a 
right  of  compulsion,  and  the  correspondent  obligation  is 
only  a  moral  obligation." l 

De  Cussy  also  says,  "  The  right  of  visit,  as  recognized 
and  tolerated  by  the  usage  of  nations,  does  not  exist  in 
time  of  peace.  Le  droik  de  visite  is  exclusively  a  bel- 
ligerent right."  "  The  extension  of  the  exercise  of  the 
right  of  visitation  and  search,  in  time  of  peace,  if  the 
great  maritime  States  (acting  under  the  influence  of  a 
sentiment  of  humanity  and  equity  which  does  honor  to 
the  sovereigns  who  signed  the  treaties  concluded  with  a 
view  to  the  abolition  and  extinction  of  the  slave-trade) 
continue  to  show  themselves  too  easy  in  the  adoption  of 
the  measures  considered  the  most  efficacious  by  Eng- 
land; the  extension,  we  say,  of  the  right  of  visitation 
and  search,  in  time  of  peace,  will  be  the  commencement 
of  a  system  for  the  dominion  of  the  seas,  by  means  of 
the  abuses  to  which  visitation  and  search  would  give 
rise,  by  confounding,  intentionally,  all  the  distinctions 
of  times  and  circumstances,  of  peace  and  wrar,  and  all 

1  Ortolan — Diplomatic  de  la  Mer,  2e*ne  ed.  torn.  1,  p.  258,  262. 


VISITATION   AND   SEARCH.  79 

the  rights  applicable  to  the  two  different  situations,  the 
one  regular,  the  other  forced  and  temporary." ] 

Elsewhere  he  remarks,  speaking  of  the  resistance  to 
the  right  of  search :  "  The  United  States  manifested 
under  these  circumstances,  in  the  highest  degree,  the 
sentiment  of  respect,  which  every  nation  ought  to  feel 
for  the  independence  of  its  flag,  and  for  its  own  dignity 
as  a  sovereign  state.  The  other  powers,  carried  away 
by  the  philanthropic  sentiment  which  induced  them  to 
sign  the  treaty  of  1841,  seem  to  have  forgotten  that 
they  were  favoring  the  strongest  passion  of  England, 
her  dominion  of  the  sea.  Was  it  not  to  go  in  advance 
of  all  her  hopes  to  accord  to  her  numerous  ships  of  war 
a  right  of  visitation  and  search,  in  time  of  peace,  in  ex- 
change for  the  same  right  received  by  the  very  inconsid- 
erable military  marines  of  Kussia,  Austria,  and  Prussia, 
and  of  the  other  maritime  States  which  acceded  to  the 
treaty  of  1841?" 2 

Phillimore,  the  most  eminent  among  the  recent 
English  commentators,  is  evidently  embarrassed  by  an 
effort  to  reconcile  the  new  doctrine,  which  he  gives,  in 
the  words  of  Lord  Aberdeen,  with  the  principles  of 
international  law,  or  with  the  opinions  of  previous  pub- 
licists. In  this  he  is  aided,  as  will  hereafter  appear, 
by  a  note  unfortunately  inserted  in  the  later  editions 
of  Chancellor  Kent's  commentaries.  He  does  not, 
however,  distinguish,  by  any  definition  susceptible  of 
application,  between  visit  and  search,  but  he  says  that 
"  it  is  quite  true  that  the  right  of  visit  and  search  is 
a  strictly  belligerent  right.  But  the  right  of  visit,  in 

1  DeCussy  —  Droit  Maritime,  torn.  2,  p.  385. 
1  Ibid.  p.  364. 


80  VISITATION  AND    SEARCH. 

time  of  peace,  for  the  purpose  of  ascertaining  the  nation- 
ality of  a  vesse^  is  a  part  indeed,  but  a  very  small  part, 
of  the  belligerent  right  of  visit  and  search."  Again,  he 
says :  "  This  right  of  mitigated  visit,  in  time  of  peace,  is 
sometimes  delicately  described  as  the  right  of  approach.  It 
is  called  by  the  French  droit  cTenqnete  du  pavilion,  as  distin- 
guished from  the  droit  de  visit 'e  ou  de  recherche  ;  and  it  is  said 
that  this  nationality  of  the  flag  may  be  ascertained  by  signals 
and  hailing,  and  that,  even  when  there  is  a  suspicion  of 
piracy,  all  proceedings  beyond  the  exchange  of  hailing 
and  signals,  must  be  taken  at  the  risk  of  the  man-of-war 
who  visits.  Whether  these  limitations  be  just  or  not,  it 
is  unquestionable  that  the  visit  for  the  purpose  of  ascer- 
taining the  nationality  of  the  vessel  must  be  exercised 
without  the  right  of  search,  which  is  exclusively  incident 
to  a  belligerent." J 

It  may  also  be  noted,  that  Dr.  Phillimore  being  like- 
wise called  on,  on  behalf  of  the  Sardinian  government, 
for  his  opinion,  as  a  jurist,  in  the  case  of  the  Cagliari,  in 
which  Dr.  Twiss  was  consulted,  cites,  as  an  authority  for 
denying  the  right  of  a  Sicilian  frigate  to  seize  a  loud 
fide  Sardinian  vessel  on  the  high  sea,  Wheaton's  "  Eight 
of  Search."  He  alludes,  at  the  same  time,  to  the  question, 
as  to  the  right  of  visitation  as  distinguished  from  search, 
which  he  says  had  been  formerly  much  discussed  be- 
tween Great  Britain  and  the  United  States,  but  which 
did  not  necessarily  arise  in  that  case.  He  not  only  con- 
tends, that,  if  any  offence  against  the  Neapolitan  govern- 
ment had  been  committed  by  the  Cagliari,  redress 
should  have  been  sought  by  an  application  to  Sardinia, 


1  Phillimore's  Commentaries  upon  International  Law,  Vol.  III.  p.  418, 
420. 


VISITATION   AND    SEARCH.  81 

but  he  also  denies  the  right  of  seizing  on  the  high  seas 
and  treating  a  foreign  vessel  as  a  pirate,  because,  though 
her  nationality  is  otherwise  established,  she  may  not 
have  on  board  all  the  papers  required  by  the  internal 
legislation  of  her  own  country.1 

It  is  believed  that  sufficient  has  been  stated  to  show, 
before  the  recent  occurrences  in  the  Gulf  of  Mexico, 
which  have  attracted  anew  the  attention  of  Europe  and 
America  to  this  most  interesting  question  of  inter- 
national law,  a  systematic  effort,  on  the  part  of  Great 
Britain,  to  establish  a  police  of  the  ocean,  which  might 
eventuate  in  her  being  recognized  as  the  exclusive 
maritime  power  of  the  world.  In  this  object  she  had 
been  efficiently  aided  by  the  zeal  which  philanthropists 
of  all  countries  have,  during  the  last  half  century,  mani- 
fested for  the  suppression  of  the  African  slave-trade ; 
while  the  only  barrier  to  her  complete  success  has  been 
the  United  States,  who  have  not  only  themselves  main- 
tained the  freedom  of  the  seas,  but,  by  their  interposition 
with  France,  prevented  the  propositions  of  England 
from  being  adopted  as  the  common  law  of  Europe. 
The  submission  of  America  was  alone  wanting,  and  to 
effect  that,  as  the  Duke  of  Wellington  intimated,  the  leg- 
islation of  1839  was  directed.  And  when  it  is  remembered, 
that,  according  to  Lord  Palmerston,  it  is  in  the  compe- 
tency of  the  boarding  officer  to  determine  whether  any 
vessel  that  he  visits  is  navigated  according  to  laiv  (a  matter 
implying  a  knowledge  of  our  navigation  laws),  it  is  evi- 
dent that  the  examination  which  the  British  govern- 


1  Document!  diplomatic!  communicat?  al  Parlamento  nazionale  dal  presi- 
dente  del  Consiglio  dei  ministri  relativi  alia  vertenza  col  governo  di  Napoli 
per  la  cattura  del  Cagliari. 


82  VISITATION   AND    SEARCH. 

ment  proposed  to  enforce,  placed  our  whole  mercantile 
marine  under  the  supervision  of  her  navy.  Not  to  have 
required,  in  1842,  as  preliminary  to  all  other  negotia- 
tions, a  renunciation  of  the  pretension,  was,  we  have 
ever  conceived,  a  most  unfortunate  mistake ;  and  the 
article  of  the  convention  providing  for  a  separate  squad- 
ron by  each  nation  on  the  coast  of  Africa,  aggravated, 
instead  of  diminishing,  the  evils  of  the  omission. 

According  to  Phillimore,  there  were  in  1849,  twenty- 
four  treaties  in  force  for  the  suppression  of  the  slave- 
trade  between  Great  Britain  and  other  civilized  pow- 
ers, including  those  with  the  United  States  and 
France,  ten  of  which  established  mixed  courts,  and  the 
others  (with  the  exception  of  the  two  conventions 
specially  mentioned)  likewise  accorded  a  mutual  right 
of  search,  though  they  required  the  captured  vessel 
to  be  handed  over  to  the  tribunals  of  the  country  under 
whose  flag  she  had  been  taken.1  The  States  stipulating 
for  mixed  commissions  were  the  Netherlands,  Sweden, 
Brazil  (whose  treaty  had  expired,  as  she  contended), 
Spain,  Portugal,  the  Argentine  Confederation,  and  the 
republics  of  Uruguay,  of  Bolivia,  of  Chili,  and  of  Ecua- 
dor. These  courts  would  seem  for  some  years  to  have 
ceased  exercising  practically  any  jurisdiction.  In  fact, 
by  excusing  one  power  after  another  from  the  obligation 
to  maintain  cruisers,  which  were  in  some  cases  dispensed 
with  in  the  original  treaties,  England  had  obtained 
almost  exclusively  the  police  of  the  African  seas.  It 
is  more  advantageous  to  the  British  officers  to  make 
captures  under  the  statutes  of  1839  and  1845,  —  those 
statutes  by  which  the  general  surveillance  of  the  ocean 

1  Phillimore  on  International  Law,  Vol.  I.  p.  253. 


VISITATION   AND    SEARCH.  83 

was  assumed,  —  than  under  the  treaties ;  and  as  the  con- 
demnation then  takes  place  in  the  Vice  Admiralty 
courts,  without  exposing  the  slave-dealer  to  personal 
penalties,  the  subjects  of  other  countries,  whether  of 
those  that  have  treaties  with  England  or  not,  are  not 
unwilling,  when  complete  success  fails  them,  that  the 
felony  should  be  commuted  by  a  trial  in  the  British 
court,  where  loss  of  property  is  the  worst  evil  that  can 
await  them. 

The  commissary  judge  at  Sierra  Leone  writes  to  Lord 
Palmerston,  under  date  of  December  31,  1848:  — 

"  Owing  to  the  operation  of  the  Acts  of  2  and  3 
Victoria,  c.  73  (1839),  and  8  and  9  Victoria,  c.  122 
(1845),  no  vessel  has  been  brought  into  the  mixed  court's 
during  1848,  but  a  very  large  number  have  been  adjudi- 
cated in  the  Vice  Admiralty  Court  of  this  colony.  That 
some  of  the  vessels  were  really  Spanish  property 
(though  under  the  Brazilian  flag),  I  cannot  doubt;  but 
the  now  general  system  of  destroying  ships'  papers,  &c.? 
previous  to  capture,  effectually  conceals  their  nationality. 
This  is  doubtless  caused  by  the  penal  law  promulgated 
at  Madrid  on  2d  of  March,  1845,  which  law  seems  to 
have  struck  the  slave-traders  with  terror,  for  during 
the  two  years  only  one  vessel,  under  the  Spanish  flag, 
has  been  adjudicated  in  the  mixed  courts  of  Sierra 
Leone. 

"During  the  past  year  no  case  was  brought  before 
the  British  and  Spanish,  British  and  Netherlands,  British 
and  Chilian,  British  and  Bolivian,  British  and  Argentine, 
British  and  Uruguay,  mixed  courts  of  justice. 

"During  the  year  there  were  condemned  in  the  Vice 
Admiralty  Court  under  5  Geo.  IV.  c.  113,  2  and  3  Vic- 
toria, c.  73,  and  8  and  9  Victoria,  c.  122,  thirty-one 


84  VISITATION    AND    SEARCH. 

vessels,  fourteen  of  which  were  captured  under  the 
Brazilian  flag,  and  fifteen  were  without  ship's  papers  or 
colors,  one  under  the  British,  and  one  under  the  flag  of 
the  United  States." l 

There  was  the  same  absence  of  business  in  the  mixed 
courts  in  1855,2  the  cases  being  all  carried  to  the  Vice 
Admiralty  Court,  where  a  larger  amount  of  prize  money 
is  obtained  by  the  captors.  Thus,  by  means  of  parlia- 
mentary enactments,  have  British  tribunals  acquired 
jurisdiction  over  vessels  of  all  nations.  Nor  has  there 
been  any  exception  as  regards  the  United  States,  the 
operation  of  whose  penal  laws  has  been  defeated  by  the 
intervention  of  British  naval  officers  and  British  courts ; 
while  the  very  impunity  \vhich  England  accords,  through 
the  interference  of  her  cruisers,  to  the  individuals  en- 
gaged in  the  slave-trade,  is  the  foundation  for  the  con- 
stant crimination  of  the  United  States  for  a  supposed 
connivance  at  the  traffic. 

Commander  Powell  complained,  in  April,  1850,  to 
Captain  Hastings  of  the  British  navy,  of  the  seizure  of 
vessels  of  the  United  States  by  the  authority  of  the 
latter.  The  American  note  is  given  as  furnishing  a 
practical  illustration  of  the  construction  put  by  their 
officers  on  the  English  instructions,  a  copy  of  which  was 
inclosed  in  Captain  Hastings's  reply.  Commander 
Powell  says:  "The  vessel  is  American  in  model,  an 
American  claims  to  be  her  master,  as  also  her  mate  and 
crew  in  part  are  American,  the  papers  are  exhibited, 
the  log-book  opened,  all  under  her  proper  flag,  but  the 
foreign  boarding  officer  is  not  yet  satisfied  as  to  her 


1  Parliamentary  Papers,  1849. 

4  Parliamentary  Papers,  1856,  Vol.  LXVIII. 


VISITATION   AND    SEARCH.  85 

nationality.  There  are  suspicious  Brazilians  about  the 
deck,  and  he  demands  a  further  scrutiny  and  finds  the 
vessel  prepared  to  receive,  or  actually  full  of  slaves. 
In  the  mean  time,  the  master  is  alarmed,  hauls  down 
the  American  flag,  destroys  his  papers,  declares  he  is 
not  the  captain,  calls  out  a  Brazilian,  who  invests  him- 
self with  office  as  the  captain.  All  this,  in  some  cases, 
in  the  presence  of  the  British  officer,  who  seizes  the 
vessel  as  Brazilian,  and  discharges  the  delinquents.  He 
adjudicates  the  case,  as  far  as  the  American  parties  are 
concerned,  and  perhaps  wrongfully  —  certainly,  so  far 
as  the  suppression  of  the  slave-trade  is  concerned ;  and 
this  is  the  only  object  for  which  our  government  ex- 
pends the  treasure  and  sacrifices  the  lives  of  our  people 
on  the  coast  so  freely  —  wrongfully,  for  the  probabilities 
are  that  the  destroyed  papers  are  genuine  documents, 
which,  produced  in  evidence  against  the  parties  before 
the  United  States  tribunals,  would  subject  them  to  the 
heavy  penalties  of  the  laws  prohibiting  the  slave-trade 
—  wrongfully,  for  the  parties,  be  they  who  they  may, 
are  not  held  to  answer  for  their  crimes." l 

In  October,  1857,  the  American  brigantine  Bremen 
wras  boarded  by  Commodore  Wise,  of  the  British  gov- 
ernment steamer  Vesuvius,  wrho  informed  her  com- 
mander that  it  was  his  intention  to  take  the  vessel,  that 
he  did  not  wish  to  see  her  papers,  at  the  same  time 
giving  him  his  choice  to  be  taken  under  the  American 
flag  or  otherwise.  The  colors  were  hauled  down,  the 
papers  thrown  overboard,  the  vessel  seized  as  a  prize 
"without  colors  or  papers."  That  this  was  a  system- 
atic procedure  is  apparent  from  the  answer  of  the  Brit- 

1  31  Cong.  1  Sess.  Senate,  Ex.  Doc.  No.  66,  p.  9. 


CO  VISITATION   AND    SEARCH. 

ish  commodore  to  a  lieutenant  of  the  United  States 
ship  Dale,  then  cruising  in  the  neighborhood.  He  did 
not  deny,  that,  in  the  event  of  his  meeting  with  an 
American  slaver  under  American  colors  and  having 
genuine  papers,  he  would  use  means  to  induce  the  cap- 
tain to  throw  the  papers  overboard.  This  assumption 
by  the  British  cruisers  of  the  appropriate  functions  of 
the  American  squadron  was  very  recently  the  ground 
of  a  formal  remonstrance  by  Commodore  Conover  to 
the  British  Admiral,  "  as  being  an  interference  with  the 
rights  of  Americans  to  take  and  bring  to  punishment 
those  who,  while  they  wear  the  flag  of  the  United  States, 
offend  against  their  laws,  as  being  in  violation  of  the 
express  stipulations  of  the  two  governments  to  enforce 
their  laws  for  the  suppression  of  the  trade  separately 
and  respectively,  and  of  the  often  expressed  declarations 
of  the  American  government,  that  the  American  flag 
shall  protect  American  property  from  all  intrusion  of 
foreign  cruisers." * 

The  same  course  has,  however,  been  continued  to  the 
latest  period,  as  may  be  inferred  even  from  the  notes  of 
the  present  British  minister  at  Washington  to  the  Secre- 
tary of  State.2 

The  convention  of  1845  between  England  and  France 
is  no  longer  operative.  It  contained  a  provision,  that  i£ 
at  the  end  of  the  tenth  year,  the  preceding  conventions, 
of  1831  and  1833,  were  not  reestablished,  they  should 
be  considered  as  abolished.  Some  time  before  its  expi- 
ration, the  stipulated  number  of  cruisers,  which  had 
been  twenty-six,  was  reduced  to  twelve.  The  actual 


1  35  Cong.  1  Sess.  Senate,.  Ex.  Doc.  No.  49,  p.  35,  39. 
1  Ibid.  p.  10. 


VISITATION   AND    SEARCH.  87 

obligations  of  France,  as  regards  the  right  of  search  and 
her  legislation  respecting  the  slave-trade,  are  thus  stated, 
in  the  Revue  des  deux  mondes  for  the  1st  of  January :  — 

"  It  is  not  generally  known,  that  the  treaties  respect- 
ing the  right  of  visitation  and  search  (droit  de  visile)  have 
ceased  to  exist  The  famous  conventions  which  excited 
such  clamorous  divisions  in  the  political  world  have  ex- 
pired unnoticed.  Those  of  the  30th  of  November,  1831, 
and  of  the  22d  of  March,  1833,  contained  no  clause  lim- 
iting their  duration;  but  that  of  29th  of  May,  1845, 
which  was  signed  after  warm  parliamentary  discussions, 
and  which  impliedly  abrogated  the  preceding  ones,  was 
only  to  remain  in  force  ten  years.  By  the  terms  of  the 
tenth  article,  \vhich  fixes  this  limit,  the  negotiations  for 
its  extension  were  to  be  resumed  in  the  course  of  the 
fifth  year,  that  is  to  say,  in  1850.  We  cannot  say 
whether  negotiations  took  place  at  the  appointed  time ; 
but  we  are  certain,  that  the  present  government  has 
purposely  allowed  the  period  of  expiration,  of  29th 
May,  1855,  to  arrive,  without  desiring  that  the  question 
should  be  again  taken  up.  Now,  then,  all  this  excep- 
tional system  is  at  an  end,  and  there  is  no  other  inter- 
national law  on  this  subject  except  that  which  results 
from  the  great  political  Treaties  of  1814  and  1815,  which 
proclaim,  in  general  terms,  the  abolition  of  the  trade, 
but  leave  every  people  fully  at  liberty  to  employ  what- 
ever means  they  think  proper  to  accomplish  it.  The 
legislation  which  has  been  with  us  the  consequences  of 
these  diplomatic  acts  is  to  be  found  entire  in  the  ordon- 
nance  of  January  8,  1817,  and  in  the  laws  of  April  15, 
1818,  April  25,  1825,  and  March  4,  1831.  It  is  use- 
less to  say  that  nothing  in  this  legislation  authorizes 


00  VISITATION   AND    SEARCH. 

the  interference  of  a  foreign   power  in  our  proceed- 
ings."1 

But  though  the  eighth  article  of  our  convention  of 
1842,  might,  by  the  terms  of  the  treaty,  have  been 
made  to  cease  at  any  time  after  22d  August,  1847, 
which  was  five  years  from  its  ratification,  it  still  contin- 
ues in  force ;  and  its  execution,  on  our  part,  despite  all 
that  has  been  done  by  British  cruisers  to  render  useless 
our  African  squadron,  was,  so  late  as  December  24,  1857, 
made  the  subject  of  an  official  note  from  Lord  Napier 
to  General  Cass.  That  communication  is  referred  to  in 
this  connection  on  account  of  the  issue,  which  it  seems 
purposely  to  have  raised,  by  the  renewed  assertion  of 
the  right  of  search,  or  visit.  Averring  that  many  ves- 
sels engaged  in  the  slave-trade  had  hoisted  American 
colors,  Lord  Napier  says,  "  this  precaution  does  not  pro- 
tect the  slaver  from  visit,  but  it  exonerates  him  from 
search" 

General  Cass,  concentrated  in  his  reply  of  April  10, 
1858,  the  arguments  which  had  been  so  effective  in 
France,  sixteen  years  before,  with  the  results  of  experi- 
ence and  recent  investigation.  He  declares  that  "the 
distinction  taken  between  the  right  of  visitation  and  the 
right  of  search,  between  an  entry  for  the  purpose  of  ex- 
amining into  the  national  character  of  a  vessel  and  an 
entry  for  the  purpose  of  examining  into  the  objects  of 
her  voyage,  cannot  be  justly  maintained  upon  any  rec- 
ognized principle  of  the  law  of  nations."  "  The  United 
States  deny,"  he  repeats,  "  the  right  of  cruisers  of  any 
power  whatever  to  enter  their  vessels  by  force  in  time 

1  Revue  des  deux  mondes,  Janvier  ler,  1858,  p.  96. 


VISITATION   AND    SEARCH.  89 

of  peace,  much  less  can  they  permit  foreign  officers  to 
examine  their  papers  and  adjudicate  upon  their  nation- 
ality and  whether  they  are  navigated  according  to  law. 
No  change  of  name  can  change  the  illegal  character  of 
the  assumption.  Search  or  visit,  it  is  equally  an  assault 
upon  the  independence  of  nations."  These  positions 
were,  in  addressing  a  British  minister,  most  aptly  sus- 
tained by  a  reference  to  the  statesmanlike  speeches  of 
the  Duke  of  Wellington  and  the  unanswerable  reason- 
ing of  Lord  Stowell. 

General  Cass  answers  the  argument  deduced  from  in- 
voluntary mistakes,  by  distinguishing  between  an  acci- 
dental or  unintentional  trespass,  and  the  doing  of  an  act 
under  claim  of  right,  so  frequently  confounded  in  the 
British  documents.  He  well  meets,  as  he  did  in  his 
letter  to  Mr.  Guizot,  the  suggestion  that  certain  anti- 
slavery  treaties  could  not  be  carried  out,  or,  as  Lord 
Aberdeen  added,  English  laws  enforced  against  English 
subjects,  without  boarding  American  vessels.1  And  on 
this  point,  we  may  again  turn  to  the  judgment  in  The 
Louis :  "  It  is  no  objection  to  say  that  the  British  may 
by  disguise  elude  the  obligations  of  British  law.  The 
answer  of  the  foreigner  is  ready,  that  you  have  no  right 
to  provide  against  that  inconvenience  by  imposing  a 
burden  upon  his  navigation.  If  even  the  question  were 
reduced  to  this,  that  either  all  British  ships  might 
fraudulently  escape,  or  all  foreign  ships  be  injuriously 
harassed,  Great  Britain  could  not  claim  the  option  to 
embrace  the  latter  branch  of  the  alternative.  When 
you  complain  that  the  regulation  cannot  be  enforced 
without  the  exercise  of  such  a  right,  the  answer  again  is, 

1  35  Cong.  1  Sess.  Senate,  Ex.  Doc.  No.  49,  p.  49. 
S* 


90  VISITATION  AND    SEARCH. 

that  you  ought  not  to  make  regulations  which  you 
cannot  enforce  without  trespassing  on  the  rights  of 
others." J 

The  reply  of  General  Cass  very  opportunely  antici- 
pated a  revival  of  the  system  of  boarding  and  searching 
our  vessels,  which  this  time  was  the  more  offensive  in 
consequence  of  its  being  practised  on  one  of  our  great 
commercial  highways.  General  Cass's  first  note  on  this 
new  subject  of  complaint  was  written  on  the  fourth  of 
May.  The  British  minister  answered  it  on  the  six- 
teenth ;  but  he  did  not  seem  to  have  had  any  special 
information  respecting  the  operations,  though  it  has 
since  appeared  that  the  transferring  of  the  cruising 
ground  from  the  coast  of  Africa  to  the  Gulf  of  Mexico 
was  the  result  of  a  deliberate  decision  of  the  British 
government.  Indeed,  there  is  an  extraordinary  coinci- 
dence in  the  fact,  that,  both  on  this  occasion  and  when 
the  difficulties  occurred  which  preceded  the  Ashburton 
Treaty,  the  obnoxious  proceedings  took  place  in  conse- 
quence of  the  orders  of  Lord  Palrnerston,  who  left  it  to 
his  successors  to  allay  the  excitement  which  he  had 
caused. 

Instructions  were  sent  to  Mr.  Dallas  on  the  twelfth  of 
May,  informing  him  of  an  outrage  by  a  British  armed 
vessel,  the  facts  of  which  he  was  directed  to  communi- 
cate to  Lord  Malmesbury,  and  to  express  to  him  the 
earnest  desire  of  the  President  that  this  practice,  which 
seemed  to  be  once  more  prevalent,  of  detaining  and 
searching  American  vessels,  should  be  discontinued ;  and 
that  the  most  peremptory  orders  should  be  given  for 
that  purpose.  "  Whatever  may  be  the  true  object,"  it  is 

1  Dodson's  Admiralty  Reports,  Vol.  II.  p.  254. 


VISITATION   AND    SEARCH.  91 

added,  "  of  the  voyage  of  The  Cortes,  as  she  had  papers 
stating  her  American  character,  she  was  subject  to 
neither  search  nor  capture  by  the  British  cruiser."  ] 

On  the  eighteenth  of  May,  General  Cass  again  wrote 
to  Mr.  Dallas,  transmitting  to  him  a  list  of  vessels,  which 
had  been  forcibly  detained  and  searched  in  the  Gulf  of 
Mexico.  He  also  stated,  that  "in  addition  to  these 
aggressions  on  the  high  seas,  and  indefensible  acts  of 
violence  against  several  of  our  merchant  vessels,  a 
forcible  entry  and  examination  has  been  committed  by 
a  British  steamer  in  the  harbor  of  Sagua  la  Grande,  in 
the  island  of  Cuba."  Proper  representations,  he  is  told, 
will  be  made  as  to  these  cases  to  the  government  of 
Spain,  and  if  protection  is  not  afforded  by  it  from  law- 
less violence  to  vessels  resorting  to  Spanish  ports,  it 
must  be  found  in  the  power  of  our  country.  The 
President  expects  that  the  officers  who  have  been  guilty 
of  the  outrages  shall  be  held  responsible  for  their  con- 
duct, and  that  just  pecuniary  compensation  will  be 
made  to  the  parties  for  all  injuries.  Mr.  Dallas  is 
directed  to  call  Lord  Malmesbury's  particular  attention 
to  the  occurrence  at  Sagua  la  Grande.2 

1  The  Cortes  has  already  been  condemned  in  the  Vice  Admiralty  Court  of 
Jamaica.     A  letter  from  Kingston  under  the  date  of  May  28,  announcing 
that  event,  and  which  is  published  at  New  York,  in  the  Courrier  ties  Etals 
(7ms,  says :  "  This  vessel,  though  evidently  built  in  the  United  States,  could 
not  present  regular  papers,  and  was  brought  in  here.     She  has  been  decided 
to  be  a  good  prize.    What  diminishes  greatly,  even  in  the  opinion  of  the  most 
violent  adversaries  of  slavery,  the  honor  which  the  English  cruisers  seek  to 
acquire  by  such  captures,  is,  that  the  commander,  other  officers,  and  even  the 
crew,  have  an  exorbitant  share  from  these  prizes.     Officers  are  every  day 
seen  who  in  three  or  four  years  have  enriched  themselves  by  a  business 
•which  ends  in  becoming  piracy,  rather  than  a  philanthropical  work." 

2  In  time  of  war,  when  a  ship  has  been  captured  in  neutral  territory,  it  is 
only  the  neutral  that  can  question  the  validity  of  the  capture.    The  enemy 


92  VISITATION   AND    SEARCH. 

On  the  twenty-eighth  of  May,  the  Committee  on  For- 
eign Relations  of  the  Senate,  through  their  chairman, 
Mr.  Mason,  made  a  report,  which  stated  that  "  American 
vessels,  pursuing  the  paths  of  lawful  commerce  on  the 
high  seas,  or  passing  near  the  American  coast  from  one 
domestic  port  to  another,  under  the  flag  of  their  country, 
have  been  pursued,  fired  into,  and  compelled  to  stop,  by 
the  public  force  of  a  foreign  power;  questioned  as  to 
their  destination,  their  cargo,  and  the  character  of  their 
crew;  required  to  submit  to  an  examination  of  their 
sea-papers  and  to  a  scrutiny  into  the  objects  and  pur- 
poses of  their  voyage,"  and  that  others  anchored  at  the 
port  of  Sagua  la  Grande,  in  the  Island  of  Cuba,  have 
been  subjected  to  a  police  inquisition  by  the  same  for- 
eign power. 

The  committee  say  that  the  documents  accompanying 
the  President's  message  disclose  the  fact,  that  these  acts 
of  visitation  and  examination  of  American  vessels  were 
sought  to  be  justified,  under  the  plea  of  necessity  for  the 
suppression  of  the  slave-trade.  They  will  not  go  into 
any  inquiry  as  to  such  alleged  necessity.  The  assent  of 
the  United  States,  though  often  invoked,  has  never  been 
yielded  to  any  such  system  of  police  on  the  seas.  There 
is  no  right  of  visitation,  far  less  of  search,  to  be  exer- 
cised in  time  of  peace  by  any  nation  of  the  ships  or 
vessels  of  other  nations,  nor  can  there  be,  so  long  as  the 
laws  of  the  civilized  world  touching  the  freedom  of  the 


has  no  rights  whatever  against  a  captor,  and  if  the  neutral  sovereign  omits 
or  declines  to  interpose  a  claim,  the  property  is  condemned  jure  belli  to  the 
captor.  (The  Anna,  3  Wheat  447.)  But  the  principle  of  the  preceding 
rule  has  no  application,  it  is  conceived,  in  peace,  and  the  claim  which  Spain 
has  on  England,  and  which  the  United  States  have  on  Spain,  does  not  impair 
•our  right  to  demand  redress  directly  from  England. 


VISITATION   AND    SEARCH.  93 

sea  are  respected  by  civilized  men.  Neither  is  there  any 
distinction  to  be  drawn  in  the  claim  of  right  between 
visitation  at  sea  by  the  armed  vessels  of  a  foreign  power, 
when  unattended  by  examination  and  search,  and  when 
so  attended.  The  offence  and  violation  of  public  law 
consist  in  the  visitation  without  regard  to  its  purpose, 
when  claimed  as  a  right  against  the  will  of  the  party 
subjected  to  it.  Were  it  otherwise,  there  would  follow, 
of  course,  the  correlative  right  to  arrest  and  detain  the 
vessel  until  the  visitation  is  effected. 

The  committee  concluded  by  reporting  the  following 
resolutions,  which  were,  on  the  16th  of  June,  unanimously 
adopted  by  the  Senate. 

"Resolved  (as  the  judgment  of  the  Senate),  That 
American  vessels  on  the  high  seas,  in  time  of  peace, 
bearing  the  American  flag,  remain  under  the  jurisdiction 
of  the  country  to  which  they  belong,  and  therefore  any 
visitation,  molestation,  or  detention  of  such  vessels  by 
force,  or  by  the  exhibition  of  force,  on  the  part  of  a  for- 
eign power,  is  in  derogation  of  the  sovereignty  of  the 
United  States. 

"Resolved,  That  the  recent  and  repeated  violations  of 
this  immunity,  committed  by  vessels-of-war  belonging  to 
the  navy  of  Great  Britain  in  the  Gulf  of  Mexico  and 
the  adjacent  seas,  by  firing  into,  interrupting,  and  other- 
wise forcibly  detaining  them  on  their  voyage,  requires, 
in  the  judgment  of  the  Senate,  such  unequivocal  and 
final  disposition  of  the  subject,  by  the  governments  of 
Great  Britain  and  the  United  States,  touching  the  rights 
involved,  as  shall  satisfy  the  just  demands  of  this  gov- 
ernment, and  preclude  hereafter  the  occurrence  of  like 
aggressions. 

"Resolved,  That  the  Senate  fully  approves  the  action 


94  VISITATION   AND    SEARCH. 

of  the  executive  in  sending  a  naval  force  into  the  infest- 
ed seas  with  orders  '  to  protect  all  vessels  of  the  United 
States  on  the  high  seas  from  search  or  detention  by  the 
vessels-of-war  of  any  other  nation.'  And  it  is  the  opin- 
ion of  the  Senate,  that,  if  it  become  necessary,  such 
additional  legislation  should  be  supplied  in  aid  of  the 
executive  power  as  will  make  such  protection  effectual." 

The  Senate,  it  will  be  remembered,  is  associated  with 
the  President  in  the  treaty  making  power,  and  as  two 
thirds  of  the  members  present  must  concur  in  any  con- 
ventional arrangements,  their  views  may  always  be  re- 
garded by  foreign  governments  as  conclusive  on  a  ques- 
tion of  international  polity. 

In  the  discussion  of  the  resolutions  there  was  not  a 
senator  who  implied  that  visitation  or  search  in  any 
form  was  admissible  or  would  be  tolerated.  On  the  doc- 
trinal points  they  all  adopted  the  principles  as  main- 
tained by  the  Secretary  of  State,  and  in  the  report  of 
their  committee.  Nor  was  there  any  difference  among 
them  arising  from  sectional  or  party  considerations. 
Among  those  most  inclined  to  the  strongest  measures 
were  senators  most  opposed  to  the  extension  of  slavery, 
and  who  were  never  considered  as  supporters  of  the 
administration  ;  while  Mr.  Hammond  of  South  Carolina 
and  Mr.  Crittenden  of  Kentucky,  both  representing  slave 
States,  were  the  most  moderate  in  their  denunciation  of 
the  British  aggressions. 

Mr.  Crittenden  said :  "  I  do  not  want  any  negotiations 
with  Great  Britain  about  the  right  of  search  or  visita- 
tion. That  is  a  subject  which  is  exhausted ;  our  minds 
are  made  up  on  that  question,  and  we  do  not  wish  that 
the  government  of  England  should  understand  that  we 
consider  the  question  on  our  part  open  for  any  argument. 


VISITATION   AND    SEARCH.  95 

We  have  made  up  our  minds  on  it.  "We  only  wish  to 
negotiate  with  her  about  these  acts.  When  she  refuses 
to  make  reparation  for  them,  then  we  will  decide  whether 
they  are  of  consequence  or  importance  enough  either 
to  our  honor  or  to  our  interest  to  make  them  cause  of 
war.  Great  Britain  may  be  perfectly  willing  to  renounce 
these  acts  and  disavow  them;  and  that  is  all  that  we 
have  a  right  to  demand.  I  should  think  it  unworthy  of 
this  government  to  enter  into  any  negotiation  on  the 
subject  of  visitation  or  search."  l 

Mr.  Seward,  of  New  York,  needed  no  law-books  or  ju- 
dicial decisions  to  instruct  his  mind  in  regard  to  the 
rights  of  nations  upon  the  great  public  highways.  A 
nation  was  to  be  governed  by  similar  rules  that  would 
be  applied  to  an  individual.  If,  because  there  are  thieves 
and  robbers  in  society,  a  private  citizen  can  be  stopped 
and  searched  in  the  street  by  every  person  who  may 
choose  to  exercise  the  right  of  police,  then  it  is  true  that 
one  nation  has  a  right  to  constitute  itself  a  police  upon 
the  high  seas  for  the  purpose  of  ascertaining  the  hones- 
ty, integrity,  and  good  conduct  of  other  nations ;  but 
there  is  no  such  right  anywhere.  It  is  a  claim  founded 
in  force,  and  not  in  right.  The  United  States  have 
never  recognized  this  right,  and  never  will ;  and  it  has 
been  practically  abandoned  by  Great  Britain  ever  since 
the  close  of  the  last  war.  The  true  principle  is  this :  as 
there  may  be  pirates  at  sea,  as  well  as  culprits  on  land, 
any  person  who  may  choose  to  challenge  another  as  be- 
ing an  unjust  and  dangerous  person,  may  either  arrest 
or  detain  him,  but  he  does  it  at  his  peril.  If  the  person 
proves  to  be  a  culprit,  he  is  abandoned  to  the  hands  of 

1  Cong.  Globe,  1857-8,  p.  2530. 


96  VISITATION   AND    SEARCH. 

justice ;  but  if  he  turns  out  to  be  innocent,  then  the  per- 
son arresting  him  is  the  aggressor,  and  is  bound  to  give 
satisfaction.  This  principle  is  applicable  to  nations  as 
well  as  individuals ;  and  on  this  principle  we  ought  to 
demand  satisfaction  from  the  government  of  Great 
Britain. 

Mr.  Hale,  of  New  Hampshire,  moved  to  amend  the 
resolutions,  by  inserting  a  clause  declaring  that  these 
acts  are  belligerent  in  their  character,  and  should  be 
resisted  at  all  hazards  and  by  all  the  power  of  the  coun- 
try. 

Mr.  "Wilson,  of  Massachusetts,  moved  to  amend  the 
amendment  of  Mr.  Hale  by  adding  the  following:  — 
"And  the  President  is  hereby  authorized  and  empowered 
to  employ  the  naval  force  of  the  United  States,  and  send 
the  same  to  the  scene  of  the  recent  outrages,  with  in- 
structions to  capture  the  ships  which  have  committed,  or 
which  may  commit,  these  belligerent  acts." 

Mr.  Douglas,  of  Illinois,  stated  that  he  concurred  in 
the  general  tone  of  the  report,  but  he  would  make  one 
reservation.  Instead  of  contenting  ourselves  with  an 
expression  of  an  opinion  that  this  thing  must  stop,  he 
believed  we  should  bring  forward  some  practical  legisla- 
tion, and  authorize  and  empower  the  President  to  stop 
it.  He  could  see  no  use  in  these  Resolves.  We  resolved 
upon  the  subject  forty  years  ago,  and  we  have  resolved 
ever  since,  when  these  rights  have  been  violated.  Eng- 
land has  been  informed,  as  formally  and  solemnly  as  it  is 
in  the  power  of  one  nation  to  inform  another,  that  this 
invasion  of  our  rights  must  cease,  and  if  not,  that  we 
shall  resist  by  force.  What  good  has  it  done  ?  England 
had  violated  this  right  thirty-three  times,  he  believed, 
within  the  last  four  weeks ;  and  now  shall  we  say  that 


VISITATION  AND   SEARCH.  97 

if  she  does  it  a  dozen  times  more,  or  thirty-three  times 
more,  we  shall  not  like  it  ?  He  presumed  that  England 
knew  now  that  we  did  not  like  it.  What  good  will  it  do 
now  to  resolve  again  that  this  is  a  violation  of  our 
rights,  that  it  is  offensive  to  us,  and  we  shall  not  submit 
to  it.  He  believed  that  there  was  a  more  direct  way  of 
getting  at  it,  and  that  was  to  clothe  the  President  with 
power  to  put  an  end  to  this  course  of  proceeding  ;  and 
then,  whenever  our  rights  shall  be  again  violated,  let 
him  instantly  avenge  the  wrong  on  the  spot.  The  bet- 
ter mode  would  be  for  one  of  our  ships-of-war  to  get 
upon  the  track  of  the  Styx,  or  any  other  British  vessel 
that  has  been  committing  these  outrages,  follow  her, 
capture  her,  make  prisoners  of  all  on  board,  and  bring 
the  vessel  into  an  American  port  to  answer  for  the  of- 
fence. If  the  British  government  avows  that  act,  it  be- 
comes an  international  question  between  this  country 
and  Great  Britain ;  and  if  she  disavows  it,  it  is  for  us  to 
say  what  punishment  shall  be  inflicted  upon  those  law- 
less persons  who  are  then  abandoned  by  their  own  gov- 
ernment as  pirates. 

Mr.  Mallory,  of  Florida,  moved  to  amend  the  resolu- 
tions by  striking  out  all  after  the  word  "  resolved,"  and 
inserting  a  substitute  to  the  effect  that  the  recent  pro- 
ceedings of  the  British  naval  officers  in  the  Gulf  of  Mex- 
ico and  upon  the  high  seas,  in  forcibly  arresting  and  ex- 
amining vessels  of  the  United  States,  owned  and  navi- 
gated by  American  citizens,  and  engaged  in  lawful  trade, 
are  without  justification  or  palliation,  and  an  aggression 
upon  the  rights  of  the  American  people,  which  they  can 
never  suffer  to  be  infringed ;  and  the  President  of  the 
United  States  is  authorized  to  adopt  immediate  measures 
to  arrest  at  once  the  continuance  of  such  outrages. 


98  VISITATION   AND    SEARCH. 

On  another  day,  he  said  that  he  felt  satisfied  that  the 
instructions  under  which  the  searches  were  made  were 
issued  in  1844,  and  that  they  have  never  been  modified 
or  extended,  but  that  the  British  officers,  impelled  by  a 
desire  for  prize  money,  as  a  matter  of  course,  are  exe- 
cuting these  orders  very  zealously,  and  the  great  number 
of  instances  which  have  occurred  about  the  same  time 
have  directed  our  attention  to  them.  They  have  been 
going  on  for  ten  years  past,  and  therefore  have  not  at- 
tracted so  much  notice.  Mr.  Mallory  then  read  a  paper 
issued  from  the  last  administration,  but  not  printed,  in 
reference  to  the  American  vessel  El  Dorado,  fired  into  by 
a  Spanish  frigate.  The  orders  from  the  Secretary  of  the 
Navy  were,  that,  u  if  any  officer  of  a  ship-of-war  be  pres- 
ent when  an  outrage  of  the  character  mentioned  is  per- 
petrated on  a  vessel  rightfully  bearing  our  flag,  he  will 
promptly  interpose,  and  relieve  the  arrested  American 
ship,  prevent  the  exercise  of  the  assumed  right  of  visi- 
tation and  search,  and  repel  the  interference  by  force." 
And,  in  a  communication  from  the  Secretary  of  State, 
(Mr.  Marcy),  it  is  said  that  "  the  conduct  of  the  com- 
mander of  The  Ferrolano  in  firing  into  an  American 
vessel  and  subjecting  her  to  visitation  and  search  had 
been  brought  to  the  notice  of  the  Spanish  minister,  as 
an  act,  which,  if  done  by  the  order  of  Spain  or  sanc- 
tioned by  her,  must  be  regarded  as  the  assertion  of  a 
right  to  exercise  a  police  over  our  commerce  upon  the 
ocean,  which  will  be  resisted  at  every  hazard  by  the  gov- 
ernment of  the  United  States."  * 

Mr.  Hayne,  of  South  Carolina,  thought  the  resolutions 
were  wise,  dignified,  manly,  and  proper.  He  approved 

1  Cong.  Globe,  1857-8,  p.  3054. 


VISITATION   AND    SEARCH.  99 

the  promptness  that  characterized  the  conduct  of  Oliver 
Cromwell  and  Andrew  Jackson,  and  expressed  the  opin- 
ion that  our  interests  and  honor  would  be  safe  in  the 
hands  of  our  gallant  navy. 

Mr.  Toombs,  of  Georgia,  would  vote  for  a  resolution, 
not  only  to  send  our  force  there  to  prevent  these  things 
in  future,  but  to  seize  these  vessels,  with  or  without  the 
authority  of  the  British  government.  He  believed  the 
military  force  of  the  country  should  be  placed  at  the 
disposal  of  the  Executive,  and  that  we  should  either  sink 
these  aggressors  upon  our  rights,  or  seize  them  and  bring 
them  to  condign  punishment.  He  would  be  satisfied 
with  nothing  short  of  that. 

Mr.  Hammond,  of  South  Carolina,  differed  in  opinion 
with  the  senator  from  Georgia.  He  thought  there  was 
much  substance  in  these  resolutions,  and  if  they  were 
earnestly  maintained  by  the  Senate  and  the  country,  they 
would  accomplish  the  desired  object.  It  was  not  a  small 
thing  to  adopt  such  resolutions ;  he  thought  they  would 
result  in  war,  because  he  did  not  believe  England  would 
abandon  the  right  of  search  which  she  claimed.  Still  he 
was  not  in  favor  of  making  a  declaration  of  war  by  a  side 
blow.  If  it  was  the  intention  of  this  country  to  go  into  a 
war  with  England,  we  ought  to  make  a  formal  declaration 
of  war.  It  was  a  momentous  matter  to  engage  in  a  war 
with  that  power,  and  it  should  be  done  with  all  proper 
form.  He  believed  we  had  just  and  ample  cause  for 
war,  for  we  had  received  a  most  flagrant  insult ;  but  he 
preferred  by  passing  these  resolutions  to  give  England 
one  chance  to  avert  an  event,  which,  whenever  it  occurs, 
will  change  the  whole  face  of  human  affairs. 

Mr.  Benjamin,  of  Louisiana,  said,  the  right  of  visita- 
tion cannot  be  yielded  to  any  nation,  without  placing  in 


100  VISITATION   AND    SEARCH. 

her  hands  a  dangerous  power,  and  least  of  all  can  we 
yield  it  to  such  a  nation  as  Great  Britain.  It  is  admit- 
ted by  all  writers  on  international  law  to  be  a  belliger- 
ent right.  He  thought  that  the  present  was  a  time  for 
the  Executive  to  assert  our  rights  with  an  energy,  which 
would  be  more  acceptable  to  the  people  of  the  United 
States  than  any  amount  of  that  diplomacy  under  cover 
of  which  our  rights  had  hitherto  been  eluded  by  Eng- 
land. 

Mr.  Bayard,  of  Delaware,  pointed  out  an  error,  favor- 
ing the  British  pretensions,  which  did  not  exist  in  any 
of  the  anterior  editions  of  Chancellor  Kent's  Commen- 
taries, but  which,  interpolated  as  a  note  to  the  edition 
of  1844,  has  been  retained  in  all  those  subsequently 
published.1 

Chancellor  Kent's  text,  which  is  unchanged,  declares 
that  "it  (the  right  of  visitation  or  search)  is  founded  upon 
necessity,  and  is  strictly  a  war  right,  and  does  not  right- 
fully exist  in  time  of  peace,  unless  conceded  by  treaty." 
At  the  end  of  a  note  to  the  fifth  edition,  in  1844,  purport- 
ing to  give  a  summary  of  the  controversy  between  the 
United  States  and  England,  it  is  said:  "The  intervisitation 
of  ships  at  sea  is  a  branch  of  the  law  of  self-defence,  and 
is,  in  point  of  fact,  practised  by  the  public  vessels  of  all 
nations,  including  those  of  the  United  States,  when  the 
piratical  character  of  a  vessel  is  suspected.  The  right  of 
visit  is  conceded  for  the  sole  purpose  of  ascertaining  the 
real  national  character  of  the  vessel  sailing  under  sus- 
picious circumstances,  and  is  wholly  distinct  from  the 
right  of  search.  It  has  been  termed  by  the  Supreme 
Court  of  the  United  States,  the  right  of  approach  for  that 

1  Cong.  Globe,  1857-8,  p.  3059. 


VISITATION  AND   SEARCH.  101 

purpose  (The  Marianna  Flora,  11  Wheaton,  1, 43) ;  and 
it  is  considered  to  be  well  warranted  by  the  principles  of 
public  law  and  the  usages  of  nations." 1 

The  Marianna  Flora,  so  far  from  favoring  the  infer- 
ence here  assumed,  has  not  only  been  cited  in  this  essay 
to  show  that  the  right  of  visitation  and  search  does  not 
belong  to  the  public  ships  of  any  country  in  time  of 
peace,  but  it  was  one  of  the  authorities  relied  on  to  sus- 
tain the  immunity  of  merchantmen,  in  the  opinion,  fur- 
nished by  Dr.  Twiss  to  the  Sardinian  government,  in  the 
case  of  The  Cagliari.  Nor  is  the  authority  of  The  Mari- 
anna Flora  the  less  valuable  for  our  purpose,  because 
the  judgment  of  the  court  was  pronounced  by  Mr.  Jus- 
tice Story,  who,  in  a  case  in  his  own  circuit  (before  the 
law  had  been  authoritatively  settled  in  the  Supreme 
Court,  in  The  Antelope,  in  conformity  to  the  opinion 
of  Lord  Stowell),  had  manifested  a  disposition  to  recog- 
nize the  doctrine  of  the  earlier  English  cases  in  prefer- 
ence to  that  of  The  Louis.2 

In  the  editions  published  since  the  death  of  Chancel- 
lor Kent,  which  occurred  in  1847,  the  Qiicestiones  Juris 
Publid  of  Bynkershoek  are  also  named  as  a  further 
authority  for  this  note.  The  work  is  thus  cited :  "Bynk. 
Q.  J.,  Pub.  lib.  1,  c.  114,  s.  P."  The  reference,  though 
it  is  repeated  in  successive  editions,  is  undoubtedly 
intended  for  c.  14,  as  there  are  but  two  books  in  this 
treatise  of  Bynkershoek,  each  of  which  contains  twenty- 
five  chapters.  The  first  book  is  entitled  De  rebus  bellicis, 
and  was  translated  by  Mr.  Duponceau  as  "A  Treatise  on 
the  Law  of  War."  Chapter  fourteen  treats  "  of  enemy's 


1  Kent's  Commentaries,  Vol.  I.  p.  153,  note  a. 

1  Mason's  Reports,  Vol.  II.  p.  409.    La  jeune  Eugenie. 

9* 


102  VISITATION   AND    SEARCH. 

goods  found  on  board  of  neutral  ships."  Speaking,  of 
course,  in  reference  to  belligerent  rights,  it  is  said  "  that 
it  is  lawful  to  detain  a  neutral  vessel,  in  order  to  ascertain, 
not  by  the  flag  merely,  which  may  be  fraudulently  as- 
sumed, but  by  the  documents  themselves  which  are  on 
board,  whether  she  is  really  neutral." * 

It  is  evident  that  there  is  nothing  in  the  above  quo- 
tation which  justifies  visitation  or  search  in  time  of  peace; 
and,  to  put  at  rest  all  reliance  on  the  Dutch  publicist  as 
an  authority  for  English  pretensions,  which  were  he  living 
he  would  have  resisted,  it  may  be  added,  that  though  the 
second  book,  entitled  De  rebus  varii  argument^  is  applicable 
to  a  time  of  peace  as  well  as  war,  the  twenty-first  chap- 
ter, which  is  the  only  one  that  refers  to  vessels,  treats 
of  the  salutes  of  ships  of  war  at  sea.  It  is,  moreover, 
confined  to  a  discussion  of  the  equality  of  states,  and  to 
the  claims,  such  as  that  of  England  to  the  British  seas, 
interposed  by  some  nations  to  a  sovereignty  over  parts 
of  the  ocean  beyond  the  ordinary  conceded  jurisdiction.2 

That  we  have  not  dilated  unnecessarily  on  what  is 
merely  a  verbal  inaccuracy  in  a  standard  work,  all  will 
admit  when  it  is  considered  that  the  authority  of  the 
Commentaries  is  not  only  universally  recognized  at 
home,  but  that  the  distinguished  civilian,  whose  defini- 
tion of  the  British  claim  of  visitation  we  have  given, 
deems  himself  justified  by  the  note  in  question  in  ad- 
ducing, as  an  authority  for  the  application  of  Bynker- 
shoek's  belligerent  rule  to  a  time  of  peace,  "  no  less  a 
jurist  than  Mr.  Chancellor  Kent." 3  We  cannot  afford  to 
have  arrayed  against  us,  by  an  oversight  of  annotators, 

1  Bynkershoek,  Duponceau's  Trans,  p.  110. 

s  Bynk.,  Q.  J.  P.  Ed.  Lugduni,  1751,  p.  340. 

*  Phillimore  on  International  Law,  Vol.  III.  p.  419. 


VISITATION  AND   SEARCH.  103 

in  addition  to  one  of  the  greatest  names  of  our  country, 
that  of  Bynkershoek.  This  explanation  is  also  due  to 
Dr.  Phillimore.  An  American  writer,  in  a  notice  of 
the  pending  controversy,  referring  to  the  third  edition 
of  Kent's  Commentaries,  and  relying  on  the  plain  lan- 
guage of  the  text,  ascribes  to  the  learned  English  com- 
mentator an  unauthorized  reference.1 

The  proceedings  in  parliament,  on  the  receipt  of  in- 
telligence from  America,  disclosed,  what  had  been  gen- 
erally believed  here,  that  the  recent  aggressions  had 
not  been  the  result  of  new  instructions,  but  merely  of 
the  more  stringent  application,  usual  on  the  arrival  of 
cruisers  on  a  new  station,  of  those  which  have  already 
been  noticed  as  having  been  drawn  up  at  the  end  of 
the  year  1843.  Lord  Palmerston,  whose  ministry  was 
not  terminated  till  February  of  this  year,  admitted  that 
the  orders  for  transferring  the  cruisers  from  the  coast 
of  Africa  to  that  of  Cuba  were  given  by  his  administra- 
tion ;  and  he  says  that  the  arrangement  was  adopted  "  in 
deference  to  the  frequently  expressed  wishes  of  parlia- 
ment, and  in  consequence  of  the  repeated  deputations 
which  came  to  members  of  the  late  government  urging 
that  course." 2 

Fortunately,  the  present  Premier  is  one  of  the  very 
few  statesmen  of  England  who  have  a  practical  ac- 
quaintance with  America.  Thirty-five  years  ago,  as 
Mr.  Stanley,  he  made  an  extensive  tour  of  the  United 
States,  and  though  a  very  young  man,  he  left  a 
most  agreeable  impression  on  those  who  then  directed 
our  public  councils.  On  more  than  one  occasion,  he,  as 

1  Brief  Examination,  &c.,  of  the  Right  of  Detention,  Visit,  and  Search,  by 
Richard  S.  Coxe,  LL.  D.  p.  26. 

3  Debates,  June  10,  1856.  —  London  Times. 


104  VISITATION  AND   SEARCH. 

well  as  Lord  Malmesbury,  has  shown  that  he  was  not 
ignorant  of  the  important  economical  considerations 
which  cannot  be  overlooked,  even  for  the  interests  of 
the  parties  intended  to  be  specially  benefited,  in  the 
application  of  any  extended  scheme  of  philanthropy. 
The  condition  in  which  forced  emancipation  had  placed 
the  West  Indies  was  moreover  the  object  of  a  personal 
investigation  by  his  distinguished  son,  the  present  Lord 
Stanley,  now,  as  Minister  of  the  Colonies,  his  associate 
in  the  administration,  and  who,  in  1850,  published  an 
account  of  the  deplorable  state  in  which  he  found  the 
liberated  negroes,  as  well  as  the  Jamaica  planters.1  The 
tone  of  the  remarks  of  the  Earl  of  Derby,  incidentally 
referred  to  in  the  debate  on  the  declarations  of  the 
congress  of  Paris,  and  on  the  difficulties  attempted  to 
be  settled  by  the  Ashburton  Treaty,  sufficiently  indi- 
cate sentiments  towards  the  United  States  very  different 
from  those  ever  manifested  by  Lord  Palmerston.  And 
on  occasion  of  the  enlistment  question  and  the  dis- 
missal of  the  British  minister  at  Washington,  his  influ- 
ence was  exerted,  in  the  House  of  Lords,  to  prevent  any 
unfavorable  consequence  from  those  proceedings,  which 
he,  moreover,  deemed  justifiable  on  our  part,  to  the 
friendly  relations  of  the  two  countries.  Though  Lords 
Derby  and  Malmesbury  held  respectively  the  same  posi- 
tions that  they  now  occupy  when  the  tripartite  con- 
vention was  proposed  in  1852,  the  sending  of  a  large 
force  the  preceding  year  to  the  Gulf  of  Mexico,  under 
pretence  of  'maintaining  a  police  for  the  protection  of 
Cuba  against  unauthorized  adventurers,  was,  like  the 


1  For  a  notice  of  the  Hon.  Mr.  Stanley's  letter  to  Mr.  Gladstone,  see  Quart. 
Rev.,  January,  1851,  Art.  V. 


VISITATION   AND    SEARCH.  105 

late  movement,  the  act  of  their  predecessors;  while 
though  in  the  case  of  the  fisheries,  which  came  up  under 
their  administration,  there  was  no  accordance  as  to  ulti- 
mate rights,  there  was  a  prompt  disclaimer  against  giv- 
ing any  new  practical  extension  to  asserted  claims. 

Nor  was  it  an  unfortunate  circumstance  as  regards 
our  reclamations,  that  the  point  of  international  law  in- 
volved was  not  abruptly  presented  to  the  notice  of  the 
British  government.  The  case  arising  between  Sardinia 
and  Naples,  threatening,  at  least,  the  peace  of  the  Ital- 
ian peninsula,  and  in  which  England  through  the  illegal 
imprisonment  of  two  of  her  subjects  was  incidentally 
involved,  had  recently  received  the  attention  of  the 
law-officers  of  the  crown.  And  though  there  was  not 
an  unanimity  of  opinion  on  all  points  arising  from  the 
temporary  possession  of  the  vessel  by  Neapolitan  rebels, 
the  attorney-general,  basing  himself  on  Lord  Stowell's 
authority,  in  The  Louis,  and  which  was  thus  promi- 
nently brought  to  view,  declared  that  no  suspicion  even 
of  past  unlawful  conduct  would  justify  the  seizure,  in 
time  of  peace,  on  the  high  seas,  by  a  public  armed  ship 
of  one  country,  of  a  vessel  belonging  to  another. 

The  first  notice  in  parliament  of  the  aggressions  in 
the  Gulf  of  Mexico  was  not  calculated  to  induce  the 
hope,  that,  however  desirous  the  British  government 
might  be  to  avoid  all  collisions  with  ours,  there  would 
be  a  concurrence  on  a  principle  of  international  law, 
which  Mr.  Webster  and  Lord  Ashburton  did  not  ven- 
ture to  discuss.  When  Mr.  Fitzgerald  (Under  Secretary 
of  State  for  Foreign  Affairs)  was  interrogated  in  the 
House  of  Commons,  on  the  1st  of  June,  regret  for  the 
occurrences  was  accompanied  by  the  declaration,  that 
"  the  government  had  sent  out  instructions  to  the  Brit- 


106  VISITATION   AND    SEARCH. 

ish  officers  engaged  in  the  waters  of  Cuba  to  exercise 
with  the  greatest  caution  the  powers  intrusted  to  them." 
And  the  Washington  Union,  in  commenting  on  Mr.  Fitz- 
gerald's speech,  remarked  that  "  this  language  is  some- 
what equivocal ;  if  it  means  any  thing,  it  is  a  declaration 
that  the  government  intend  to  pursue  the  practice  it- 
self, but  to  impose  upon  its  agents  '  the  greatest  caution ' 
and  circumspection  in  its  exercise." 1 

On  the  8th  of  June,  the  Earl  of  Clarendon,  the  late 
Minister  of  Foreign  Affairs,  in  inquiring  of  his  succes- 
sor whether  he  could  impart  any  information  as  to 
the  rumors  from  America,  said  that  he  "did  not  see 
how,  unless  some  right  of  search  was  given,  the  real  na- 
tionality of  the  flag  of  suspected  vessels  could  be  ascer- 
tained. Such  a  right  had  been  admitted  by  all  mari- 
time nations  for  their  common  protection,  for  without 
it  the  most  atrocious  deeds  might  be  perpetrated,  and 
yet  remain  unpunished.  But  the  possession  of  such 
a  right  was  a  very  different  thing  from  the  exercise 
of  it." 

The  Earl  of  Malmesbury  is  reported  to  have  an- 
swered: "I  entirely  agree  with  what  my  noble  friend 
has  said  as  to  the  American  flag  being  constantly  pros- 
tituted to  cover  the  slave-trade,  and  other  illegal  acts, 
and  I  think  it  is  highly  desirable  that  some  agreement 
should  be  made  between  the  two  countries  by  which  it 
may  be  distinctly  understood  what  proceedings  ought 
to  be  taken  by  their  officers  respectively  for  effectually 
discovering  the  impositions  to  which  I  have  alluded, 
and  which  will  not  be  offensive  to  honest  traders.  It 
is  to  that  point  I  have  directed  the  attention  of  the 
. 1 . 

1  Union,  June  20,  1858. 


VISITATION  AND   SEARCH.  107 

government  of  the  United  States,  and  that  no  later 
than  in  a  conversation  which  I  had  this  morning  with 
the  American  minister;  and  I  think  I  may  say  there 
has  not  been  any  great  difference  of  views  between  us. 
After  that  conversation  has  been  reported  to  the  United 
States  government,  after  the  delivery  of  the  despatch 
which  I  have  written  to  Lord  Napier,  and  after  the 
orders  that  have  been  sent  to  our  officers  in  those  seas, 
I  hope  there  will  be  no  repetition  of  such  acts  as  have 
been  described  to  us,  whether  truly  or  not.  In  these 
circumstances,  I  feel  that  this  country  need  remain  un- 
der no  apprehension  that  any  thing  will  occur  to  break 
the  alliance  that  so  happily  exists  between  the  two 
countries." 

The  Earl  of  Hardwicke  said,  in  reference  to  the  naval 
part  of  the  subject,  that  the  mode  of  operations  for  in- 
quirrng  into  the  nationality  of  a  vessel  had  been  clearly 
laid  down ;  and  if  there  had  been  any  excess  of  those 
instructions,  it  was  against  the  direction  that  no  offence 
was  to  be  given  to  any  nation  in  conducting  the  opera- 
tions in  those  seas. 

In  the  debates  in  the  Lords  on  the  17th,  and  in  the 
House  of  Commons,  of  the  18th,  of  June  it  appeared 
that  the  government,  having  taken  the  opinions  of  the 
law-officers  of  the  crown,  had  determined  to  yield 
the  doctrine  of  the  right  of  visit,  without  insisting  on 
the  preliminary  adoption  of  any  conventional  substi- 
tute. 

Lord  Brougham  referred  anew  to  the  distinction  be- 
tween search  and  visit.  He  thought  that  no  man  could 
deny  that  the  right  of  search  was  a  belligerent  right ; 
but,  making  that  admission,  he  was  of  opinion  that  ships 
of  any  country,  not  merely  slave-dealers  but  actual 


108  VISITATION  AXD    SEARCH. 

piratical  robbers,  should  not  be  enabled  to  carry  on 
their  nefarious  proceedings  with  impunity,  by  hoisting 
a  certain  piece  of  bunting. 

The  Earl  of  Malmesbury,  in  reply,  said  that  he  did 
not  demur  to  the  doctrines  laid  down  by  the  noble  and 
learned  lord;  but  as  the  noble  and  learned  lord  had 
stated  that  there  was  a  difference  between  the  right  of 
search  and  visit,  he  must  say  that  the  United  States 
positively,  categorically,  and  constantly  had  refused  to 
admit  the  distinction,  and  the  doctrine  laid  down  by  the 
United  States  was  adopted  by  other  countries. 

Not  long  ago  he  endeavored  to  obtain  from  all  civil- 
ized countries  some  agreement,  by  which  British  officers 
might  know  exactly  how  far  they  could  go  in  cases  of 
strong  suspicion,  and  be  protected  by  the  agreement 
He  was  anticipated  by  the  French  government,  which 
laid  down  this  law,  —  that,  in  time  of  peace,  no  French 
ship  should  be  detained  or  searched  or  boarded,  but 
that  certain  forms  should  be  gone  through  without  de- 
taining the  vessel,  which,  to  a  certain  degree,  though  to 
a  small  degree,  might  enable  the  nationality  of  the  ship 
to  be  ascertained,  and  her  right  to  the  flag  she  carried. 
He  had  no  reason  to  conceal  what  he  had  done  since 
recent  events.  He  had  admitted  the  international  law  as 
laid  dotvn  by  the  American  Minister  for  Foreign  Affairs, 
though  not,  of  course,  irithovt  being  fortified  ly  the  opinions  of 
the  laic-officers  of  the  croicn,  but,  having  admitted  that,  he 
had  put  it  as  strongly  as  possible  to  the  American  gov- 
ernment, that,  when  it  was  once  known  that  the  Amer- 
ican flag  covered  the  cargo,  every  pirate  and  slaver  on 
the  face  of  the  sea  would  carry  the  American  flag,  and 
that,  instead  of  the  honor  of  the  country  being  vindi- 
cated, that  very  fact  must  bring  dishonor  on  the  Amer- 


VISITATION   AND    SEARCH.  109 

can  nation,  if  an  obstinate  adherence  to  its  present  dec- 
larations were  persisted  in,  and  the  American  flag  would 
be  prostituted  to  the  worst  purposes.  He  had  urged 
that  it  was  necessary  in  these  civilized  times  that  there 
should  be,  if  not  a  right  by  international  law,  some 
agreement  among  the  maritime  States  as  to  how  far 
their  officers  might  go  to  verify  the  nationality  of  ves- 
sels and  the  legality  of  their  flag. 

He  earnestly  hoped,  from  the  language  he  had  used, 
and  from  conversations  he  had  had,  with  the  American 
minister  in  this  country,  and  also  from  perusing  the  able 
paper  drawn  up  by  General  Cass  on  this  point,  that  a 
change  of  this  kind  might  be  agreed  upon  with  the 
United  States,  so  -that,  by  instructions  given  to  naval 
officers,  the  flag  of  the  country  might  be  verified  with- 
out the  risk  of  offence.  Of  course,  their  lordships  would 
not  require  him  to  go  more  into  detail  as  to  the  great 
practical  difficulties  in  the  way  of  the  suppression  of 
the  slave-trade,  but  he  thought  a  mistake  had  been  com- 
mitted in  sending  our  squadron  to  the  Cuban  waters, 
instead  of  keeping  it  on  the  African  coast.  He  was  told 
that  at  the  beginning  of  the  Russian  war  the  slave-trade 
was  very  nearly  extinguished;  but  during  that  war  a 
great  portion  of  the  squadron  was  withdrawn  from 
the  coast  of  Africa,  and  the  slave-trade  made  great 
progress. 

The  Earl  of  Carlisle  knew  that  even  such  a  purpose 
as  the  suppression  of  the  slave-trade  must  be  carried  on 
with  some  reference  to  changing  circumstances  and 
conditions,  and  he  felt  convinced,  that,  in  the  interval  of 
its  suppression,  care  should  be  taken  that  we  did  not  ex- 
ceed the  limits  of  our  well-defined  rights,  or  encroach  on 
the  rights  or  prerogatives  of  others. 

10 


110  VISITATION  AND    SEARCH. 

Lord  Wodehouse  said  he  was  convinced,  that,  no  mat- 
ter what  instructions  were  given  to  our  officers,  if  we 
undertook,  by  an  armed  squadron,  to  visit  and  examine 
the  great  number  of  American  vessels  which  passed 
through  these  waters,  sooner  or  later  serious  differences 
with  the  United  States  would  occur.  He  asked  what 
would  be  the  feelings  in  this  country,  if  an  armed  squad- 
ron were  to  be  placed  in  the  channel  to  stop  and  search 
our  outward  bound  ships. 

Earl  Grey  said,  with  regard  to  the  United  States,  he 
agreed  entirely  in  the  opinion  of  acting  in  this  matter 
with  the  greatest  forbearance.  However  indignant  he 
might  be  at  the  prostitution  of  the  American  flag  in  con- 
nection with  slavery,  "  it  was  not  only  our  duty,  but  true 
wisdom  to  the  object  that  we  had  in  view,  to  remain 
rigidly  within  our  rights,  and  not  by  measures  of  ques- 
tionable legality  to  put  ourselves  in  the  wrong."  If  he 
was  not  greatly  mistaken,  the  order  sent  to  our  officers 
was  not  to  interfere  with  bond  fide  American  vessels, 
though  engaged  in  the  slave-trade. 

The  Earl  of  Aberdeen  said  that  "the  orders  when 
drawn  up  had  been  communicated  to  and  approved  by 
the  American  government,  and  that  the  officers  were 
acting  under  them,  unless  they  had  been  recently 
changed,  which  he  hoped  had  not  been  the  case.  They 
must  have  a  reasonable  suspicion  that  a  vessel  was  not 
authorized  to  carry  the  flag  she  bore,  before  they  ven- 
tured to  visit  her.  A  vessel  might  refuse  to  hoist  any 
flag,  and  in  that  case  all  that  they  had  to  do  was  to  see 
what  she  was.  If  she  turned  out  to  be  a  pirate,  they 
might  deal  with  her.  If  she  turned  out  to  be  a  Spanish 
vessel  or  the  ship  of  any  country  with  which  we  had  a 
treaty,  our  officers  might  proceed  accordingly ;  but  if  she 


VISITATION   AND   SEARCH.  Ill 

was  an  American  vessel  or  the  vessel  of  any  power  with 
which  we  had  no  treaty,  we  could  not  interfere." 

In  the  House  of  Commons,  on  the  18th,  Mr.  Bright, 
in  putting  a  question  to  Mr.  Fitzgerald,  said  that  Lord 
Aberdeen  had  stated  on  the  previous  evening,  that,  ac- 
cording to  the  instructions  of  1844,  it  was  impossible 
that  transactions,  such  as  had  been  complained  of,  could 
have  taken  place.  Now,  he  thought  that  it  was  highly 
improbable  that  British  officers  could  have  committed 
the  acts  alleged,  unless  they  had  received  fresh  instruc- 
tions beyond  those  referred  to  by  Lord  Aberdeen. 

Mr.  Fitzgerald  would  now  inform  the  Honorable  gentle- 
man what  the  views  of  her  Majesty's  government  were 
as  to  the  claim  of  the  American  government  that  the  right 
of  search  or  of  visitation  should  be  renounced.  This  right 
had  no  doubt  been  a  constant  source  of  irritation  be- 
tween the  two  nations,  and,  whatever  might  have  been 
the  practice  of  preceding  governments  of  this  country, 
it  had  never  been  admitted  by  the  Americans.  It  had 
become  the  duty,  then,  of  her  Majesty's  government,  in 
consequence  of  the  unfortunate  circumstances  which  had 
recently  transpired,  to  inquire  what  were  our  rights; 
whether,  if  we  had  such  rights,  we  should  be  prepared 
to  stand  by  them ;  and  whether,  if  we  had  them  not,  we 
ought  not  at  once  candidly  to  disclaim  them.  They  had 
accordingly  taken  the  advice  of  the  law-officers  of  the 
crown,  whose  decided  opinion  was  that  by  international 
law  we  had  no  right  of  search,  —  no  right  of  visitation 
whatever  in  time  of  peace.  That  being  so,  he  need  not 
say  they  had  thought  it  would  be  unbecoming  in  the 
British  government  to  delay  for  one  moment  the  avowal 
of  this  conclusion.  But  while  they  perfectly  acknowl- 
edged that  England  had  110  right  to  visit  American  ves- 


112  VISITATION  AND    SEARCH. 

sels  engaged  iu  peaceful  commerce,  it  would  on  the 
other  hand  be  wrong  to  say  that  this  country  should 
abandon  the  policy  which  had  so  honorably  distinguished 
her,  or  that  she  should  cease  to  employ  her  fleets  in  put- 
ting down  the  slave-trade.  On  this  point  the  position 
taken  by  the  British  government  was  exactly  that  which, 
in  one  of  the  most  able  state  papers,  had  been  laid  down 
by  General  Cass  in  his  letter  to  Lord  Napier.  In  that 
document  there  was  this  passage  :  — 

u  A  merchant  vessel  upon  the  high  seas  is  protected 
by  her  national  character.  He  who  forcibly  enters  her 
does  so  upon  his  own  responsibility.  Undoubtedly,  if  a 
vessel  assume  a  national  character  to  which  she  is  not 
entitled,  and  is  sailing  under  false  colors,  she  cannot  be 
protected  by  this  assumption  of  a  nationality  to  which 
she  has  no  claim.  As  the  identity  of  a  person  must  be 
determined  by  the  officer  bearing  a  process  for  his  arrest, 
and  determined  at  the  risk  of  such  officer,  so  must  the 
national  identity  of  a  vessel  be  determined  at  the  like 
hazard  to  him  who,  doubting  the  flag  she  displays, 
searches  her  to  ascertain  her  true  character.  There  no 
doubt  may  be  circumstances  which  would  go  far  to  mod- 
ify the  complaints  a  nation  would  have  a  right  to  make 
for  such  a  violation  of  its  sovereignty.  If  the  boarding 
officer  had  just  grounds  for  suspicion,  and  deported  him- 
self with  propriety  in  the  performance  of  his  task,  doing 
no  injury,  and  peaceably  retiring  when  satisfied  of  his 
error,  no  nation  would  make  such  an  act  the  subject  of 
serious  reclamation." 

This,  he  believed,  was  strictly  the  position  which 
we  were  entitled  to  take  by  international  law.  The 
American  government  had  themselves  acknowledged  it 
on  the  face  of  General  Cass's  state  paper  to  be  that 


VISITATION   AND    SEARCH.  113 

which  "no  nation  would  make  the  subject  of  serious 
reclamation;"  and  this  course  her  Majesty's  government 
would  instruct  our  cruisers  in  future  to  pursue.  The 
Honorable  gentleman  had  also  asked  whether  any  addi- 
tion had  been  made  to  our  fleet  in  the  Cuban  waters. 
During  the  time  that  her  Majesty's  government  had  been 
in  office,  no  such  addition  had  taken  place.  And  he 
might  say  further,  that  it  had  necessarily  come  under 
their  consideration  whether  the  continuance  of  our 
squadron  in  those  waters  was  requisite  for  the  object 
which  we  had  in  view,  and  whether  there  were  not  also 
attached  to  its  continuance  there  objections  of  another 
and  more  serious  character.  It  was  obvious  that  the 
question  of  maintaining  a  squadron  on  the  coast  of 
Africa  was  very  different  from  the  question  of  maintain- 
ing one  on  the  coast  of  Cuba.  A  squadron  on  the  coast 
of  Cuba  was  in  the  highway  of  American  commerce. 
Each  day  it  could  not  fail  to  meet  numberless  vessels  of 
American  origin  peaceably  engaged  in  trade.  And  it 
was  obvious,  that,  as  in  carrying  out  the  instructions 
given  to  them  much  must  necessarily  be  left  to  the  dis- 
cretion of  our  officers,  there  must  always  be  far  greater 
risk  of  misunderstanding  —  if  not  collision  —  in  the  case 
of  vessels  in  such  a  sea.  Whereas  on  the  coast  of  Afri- 
ca, where  the  commerce  was  much  more  scattered,  it 
was  much  easier  to  ascertain  the  character  of  a  suspi- 
cious ship,  than  when  she  was  among  a  number  of  other 
vessels  pursuing  lawful  commerce.  It  was  therefore  now 
under  the  consideration  of  her  Majesty's  government 
whether  it  was  not  more  desirable  at  once  to  withdraw 
our  squadron  from  the  Cuban  waters. 

Lord  John  Russell  said :  "With  respect  to  the  original 
instructions,  they  were  issued  by  Lord  Aberdeen  after  a 

10*  * 


114  VISITATION   AND    SEARCH. 

great  deal  of  consultation  with  persons  fully  competent 
to  advise  him,  and  among  others,  with  Dr.  Lushington. 
They  w^ere  framed  in  the  most  temperate  spirit,  and 
after  they  were  issued  they  were  communicated  to  the 
government  of  the  United  States.  During  fifteen  years 
those  instructions  had  been  acted  on  without  anv  inter- 

w 

ruption  to  amicable  relations.  Now,  the  question  arose 
whether  the  complaints  that  had  been  made  had  arisen 
from  the  increased  vigilance  —  perhaps  an  overstepping 
of  duty  —  on  the  part  of  commanders  of  British  cruisers, 
or  from  the  unwillingness  of  the  Americans  to  submit  to 
the  execution  of  those  instructions  which,  for  fifteen  years, 
they  had  seen  practically  carried  out.  And  in  either 
case,  what  was  the  duty  of  her  Majesty's  government? 
In  the  first  case,  their  duty  was  to  restrain  the  over  zeal 
of  our  commanders,  and  it  became  us  as  a  great  nation 
to  acknowledge  and  repair  any  wrong  that  had  been 
done.  If,  on  the  other  hand,  the  Americans  were  unwil- 
ling to  see  those  instructions  carried  into  effect,  it  would 
be  for  her  Majesty's  government  to  concert  with  the 
American  government  such  measures  as  might  be  neces- 
sary in  such  a  case." 

The  position  which  Lord  Palmerston  has  occupied, 
and  may  occupy  again,  makes  what  fell  from  him  a  mat- 
ter worthy  to  be  noted. 

Lord  Palmerston  said:  "He  quite  concurred  with  the 
noble  lord,  the  member  from  London,  in  thinking  it  was 
impossible  to  admit  the  naked  principle,  that  the  hoist- 
ing of  the  flag  of  any  particular  country  was  to  be  taken 
as  an  unequivocal  proof  that  the  vessel  belonged  to  the 
country  whose  flag  she  hoisted.  It  was  well  known  that 
every  vessel  carried,  for  signal  purposes,  the  flags  of 
various  countries ;  and  if  the  simple  hoisting  of  the  flag 


VISITATION  AND*  SEARCH.  115 

of  England  or  the  United  States,  or  of  any  of  the  numer- 
ous South  American  States,  were  to  be  admitted  as  a 
complete  and  sufficient  proof  of  the  nationality  of  the 
vessel,  piracy  of  every  description  would  roam  the  seas 
with  impunity,  and  every  country  possessing  a  mercan- 
tile navy  would  soon  feel  the  disastrous  consequences  of 
such  an  admission.  He  had  not  understood  the  Honor- 
able gentleman,  the  Under-Secretary,  to  have  stated  that 
the  government  had  adopted  that  principle  to  the  extent 
to  which  he  had  referred.  He  had  been  informed  by 
his  Right  Honorable  friend,  the  late  First  Lord  of  the 
Admiralty,  that  no  instructions  had  been  sent  to  the 
cruisers  on  the  Cuban  coast  different  from  those  instruc- 
tions which  were  agreed  on  in  1844  in  concert  with  the 
American  government.  He  presumed  that  the  fresh 
instructions  which  had  now  been  sent  out  would  be 
communicated  to  parliament,  in  order  that  they  might 
judge  in  what  degree  the  former  instructions  had  been 
modified." 

In  the  following  remarks  of  the  Chancellor  of  the 
Exchequer,  Mr.  D'Israeli,  there  might  appear  to  be  some 
reserve  as  to  the  extent  of  the  concession  to  be  inferred 
from  what  was  stated  by  the  Secretary  of  State  in 
the  House  of  Lords  and  by  the  Under-Secretary  in  the 
House  of  Commons,  were  it  not  for  the  explicit  dec- 
larations understood  to  have  been  made  to  our  govern- 
ment, and  to  which  we  shall  presently  refer. 

"The  Chancellor  of  the  Exchequer  might  mention, 
that,  without  conceding  the  point  to  which  the  noble 
lord  had  just  referred,  and  which  they  had  not  in  any 
way  conceded,  her  Majesty's  government,  after  pointing 
out  the  terrible  abuse  of  their  flag,  under  the  present 
system,  and  that  piracy  of  the  most  flagrant  character 


116  VISITATION  AND    SEARCH. 

« 

might  be  committed,  had  invited  the  government  of  the 
United  States  to  favor  them  with  their  suggestions  as  to 
the  mode  by  which  such  things  might  be  prevented,  and 
had  offered  to  take  those  suggestions  into  consideration, 
and,  if  possible,  to  combine  with  that  government  in  any 
arrangement  that  might  promise  a  satisfactory  solution 
of  the  difficulties  which  both  governments  at  present 
experienced.  They  had  not  as  yet  received  any  answer 
to  that  proposition,  but  he  was  inclined  to  believe  that 
it  would  be  received  by  the  government  of  the  United 
States  in  the  same  spirit  as  it  had  been  offered." 

Treating  the  question,  as  the  political  advisers  of  the 
British  crown  properly  did,  as  a  subject  of  international 
law,  they  early  referred  it,  as  Sir  Robert  Peel  and  Lord 
Aberdeen  ought  to  have  done  in  1841,  to  the  examina- 
tion of  the  law-officers  of  the  government.  And  though 
in  accordance  with  the  general,  though  not  invariable, 
practice  adopted  in  England,  the  ministers  have  re- 
frained from  laying  the  opinions  formally  before  parlia- 
ment, the  result  as  announced  in  their  speeches  accords 
with  the  communications  made  to  Mr.  Dallas  in  London, 
and  through  Lord  Napier  to  the  Secretary  of  State. 

We  have  no  reason  to  doubt  the  assurances  which 
appeared  in  the  Washington  Union,  that  Lord  Malmesbury 
promptly  gave  to  Mr.  Dallas,  for  transmission  to  Washing- 
ton, a  minute  to  the  effect  that  "  her  Majesty's  govern- 
ment recognize  the  principles  of  international  law  as 
laid  down  by  General  Cass  in  his  note  of  the  tenth  of 
April,  and  that  nothing  in  the  Treaty  of  1842  supersedes 
that  law."  And  it  is  further  understood,  that  Lord 
Napier  has  furnished  to  General  Cass  a  copy  of  a 
despatch  from  Lord  Malmesbury  to  the  same  effect,  and 
which  moreover  declares  that  the  doctrines  of  the 


VISITATION   AND    SEARCH.  117 

secretary's  letter  are  sustained  by  the  authority  of  Lord 
Stowell  and  of  the  Duke  of  Wellington,  and  that 
England  has  utterly  abandoned  the  assumed  right,  and 
thus  closed  the  controversy.1  Indeed,  as  affording  a 
corroboration  from  an  American  official  source,  though 
not  imparted  in  a  formal  communication,  we  may  allude 
to  the  speech  of  Mr.  Dallas  to  his  countrymen  assembled 
in  London  on  the  fourth  of  July.  After  noticing  the 
difficulty  that  had  occurred  in  the  West  Indies,  he  says  : 
"  Without  referring  to  that  question  more  closely,  it  is  a 
point  which  is  essentially  connected  with  one  of  the 
fundamental  principles  of  the  American  Eevolution; 
that  principle  being  the  necessity  of  maintaining,  on  be- 
half of  the  great  American  people,  as  a  great  com- 
munity, the  independence  of  their  flag.  I  am  not  now 
going  to  argue  the  question  as  to  visit  and  search ;  but 
I  should  like,  on  the  fourth  of  July,  to  announce  to  my 
fellow-countrymen  that  visit  and  search,  in  regard  to 
American  vessels  on  the  high  seas,  in  time  of  peace,  is 
finally  ended.  While,  gentlemen,  I  am  enabled  to  an- 
nounce this  gratifying  fact,  I  think  it  ought  also  to  be 
accompanied  by  the  assurance,  that  the  termination  of 
that  for  which  we  have  struggled  for  nearly  half  a  cen- 
tury has  been  brought  about  with  a  degree  of  honorable 
candor  and  fair  dealing  on  the  part  of  the  British 
government  which  is  worthy  of  every  acknowledgment 
on  our  part." 2 

We  have  no  disposition  to  question  the  sincerity  of  the 
British  declaration ;  while  we  find,  in  the  comments  of 
the  British  and  continental  press  as  well  as  in  the  par- 


1  Washington  Union,  June  30,  July  9  and  10, 1858. 
•  London  Times. 


• 


118  VISITATION   AND    SEARCH. 

liamentary  discussions,  a  marked  difference  between 
the  construction  put  on  the  present  understanding  be- 
tween the  two  governments,  and  their  former  views  of 
the  attempt  to  waive  the  claim  of  visitation  and  search, 
through  the  provisions  of  the  Ashburton  Treaty.  All 
seem  convinced  that  a  perseverance  in  the  measures 
which,  since  the  pretension  of  visitation  as  distinguished 
from  search  was  set  up  by  Lord  Aberdeen  in  1841,  have 
governed  the  instructions  sent  to  the  British  cruisers, 
would  no  longer  be  acquiesced  in,  and  that  unless  a 
claim,  wholly  unwarranted  by  the  law  of  nations,  was 
abandoned,  serious  collisions  between  the  two  countries 
would  ensue. 

We  are  not  aware  that  the  action  of  the  British  gov- 
ernment requires  further  sanction.  The  point  in  dispute 
has  been  yielded  not  as  the  concession  of  any  existing 
right,  but  as  the  acknowledgment  of  what  the  law  of  na- 
tions now  is,  and  ever  has  been.  The  English  professedly 
give  up  nothing  that  they  had  a  right  to  retain,  —  no 
privilege,  the  exercise  of  which  was  not  of  itself  an  ac- 
knowledged usurpation.  The  opinions  of  the  law-officers 
of  the  crown  do  not  make  the  law,  but  declare  what 
the  law  always  has  been.  The  Earl  of  Malmesbury, 
indeed,  in  terms  admits  the  correctness  of  Lord  Stow- 
ell's  judgment,  rendered  forty  years  ago,  and  which, 
however  it  may  have  been  disregarded,  is  now  re- 
ceived as  a  true  and  obligatory  exposition  of  the 
law  of  the  case.  No  treaty,  no  legislation,  can  add 
force  to  a  recognized  international  right,  nor  in  the 
face  of  these  declarations  can  any  subsequent  ministry 
more  readily  resort  to  the  ancient  abuses  than  they 
could  violate  the  provisions  of  a  formal  treaty.  The 
case  would  be  different  as  to  us  were  we  to  yield  in  any 


VISITATION   AND    SEARCH.  119 

form,  however  qualified,  to  a  foreign  nation  a  right 
which  they  do  not  now  possess  of  visitation  or  verifica- 
tion of  the  nationality  of  our  ships.  That  would  be  a 
cession  of  an  incorporeal  right  which,  equally  with  a 
grant  of  territory,  would  require  the  full  sanction  of  the 
treaty-making  power,  which,  under  the  Constitution,  is 
vested  in  the  President  and  Senate. 

General  Cass  has  already  had  the  satisfaction  of  re- 
ceiving from  England,  what  he  contended  should,  in 
1842,  have  been  exacted,  as  preliminary  to  all  negotia- 
tions, a  formal  abandonment  of  the  claim  of  visitation 
or  search.  Therefore,  as  regards  any  subsequent  dis- 
cussion of  conflicting  pretensions,  the  honor  of  the  coun- 
try is  fully  protected. 

Our  government,  after  the  prompt  manner  in  which 
England  disavowed  her  claims,  is  in  courtesy  bound  to 
listen  to  any  suggestions  that  she  may  make ;  but  we 
trust  that  we  shall  be  exposed  to  no  further  compli- 
cated engagements  as  respects  our  maritime  rights. 
Though  not  as  a  condition  of  renouncing  visitation 
and  search,  yet  as  a  substitute  for  their  objectionable 
pretensions,  England  accompanied  the  recognition  of 
our  rights  by  a  proposition  for  a  conventional  visitation, 
and  in  the  latest  parliamentary  debates  that  have 
reached  us,  as  well  as  in  the  preceding  ones,  the  expec- 
tation is  held  forth  that  some  arrangement  of  that 
nature  may  be  effected. 

The  subject  was  alluded  to  by  Mr.  Fitzgerald  on  the 
12th  of  July,  in  the  discussion  of  a  motion  by  Mr.  Hutt 
to  discontinue  the  practice  of  visiting  and  searching  ves- 
sels under  foreign  flags,  with  a  view  of  suppressing  the 
traffic  in  slaves.  He  said,  that  the  government,  as  soon 
as  they  found  the  right  which  they  had  claimed  of  veri- 


120  VISITATION   AND    SEARCH. 

fying  the  flag  of  a  vessel  supposed  to  have  slaves  on 
board  was  one  which  they  were  not  entitled  to  exercise, 
thought  it  becoming  the  dignity  of  a  great  nation  to 
abandon  it  at  once,  at  the  same  time  they  considered 
themselves  at  liberty,  where  there  were  grave  suspicions, 
amounting  almost  to  certainty  that  the  American  flag 
was  not  legitimately  borne,  to  run  the  risk  implied  in 
ascertaining  it.  That  very  morning  he  had  received  a 
despatch  from  Lord  Napier,  who  wrote,  "  General  Cass 
stated  to  me  that  the  course  taken  by  her  Majesty's 
government  was  worthy  of  a  great  and  generous  country. 
He  assured  me  emphatically,  that,  after  the  satisfactory 
declaration  that  had  been  made  by  her  Majesty's  govern- 
ment, the  government  of  the  States  would  give  their 
attentive  consideration  to  any  proposal  which  her 
Majesty's  government  might  suggest  for  the  verification 
of  the  nationality  of  vessels,  and  their  right  to  the  flag 
which  they  displayed." 

On  all  sides  of  the  house  it  was  admitted  that  the  de- 
tention of  American  vessels,  without  the  consent  of  the 
United  States,  was  wholly  out  of  the  question. 

Though  using  the  same  language,  we  have  been  par- 
ticularly unfortunate  in  framing  treaties  with  England, 
in  the  construction  of  which  both  parties  could  agree. 
It  was  almost  thirty  years  after  the  Treaty  of  Ghent,  that 
the  boundary  line,  as  laid  down  in  the  Treaty  of  1783,  was 
definitively  settled,  and  then  it  was  effected  by  adopting 
a  conventional  line  in  the  place  of  the  one  which,  it  is 
believed,  was  as  clearly  defined  by  a  reference  to  natu- 
ral objects  as  human  language  was  capable  of  expressing 
it.  The  very  Treaty  of  1818  to  regulate  our  rights  to 
the  fisheries  under  the  Treaty  of  1783,  involved  in  an 
important  question  of  public  law,  was  itself  the  object  of 


VISITATION   AND    SEARCH.  121 

a  new  convention ;  while  after  calling  on  the  Emperor 
of  Russia  to  construe  a  passage,  in  the  English  language, 
affecting  slaves  carried  off  in  the  war  of  1812,  a  second 
arbitration  was  only  prevented  by  our  receiving  a  sum 
in  gross.  Sufficient  has  appeared  in  the  debates  on  the 
Ashburton  Treaty  to  show  how  entirely  the  parties 
failed  from  the  outset  in  coming  to  a  mutual  under- 
standing as  to  its  meaning.  The  very  exchange  of  the 
ratifications  of  that  most  unfortunate  arrangement,  the 
Clayton  Bulwer  Treaty,  opened  the  door  for  intermina- 
ble negotiations. 

As  the  law  is  now  understood  by  both  parties,  the  only 
matter  connected  with  visitation  or  search,  open  for  con- 
sideration, is  to  provide  for  cases  of  involuntary  trespass. 
Dependent  as  each  case  must  be  on  the  attendant  cir- 
cumstances, which  can  no  more  be  anticipated  than  the 
causes  that  would  justify  a  political  revolution,  it  is 
difficult  to  perceive  how  any  definition  of  excusable 
trespass,  that  would  be  of  any  practical  avail,  can  be 
established  by  convention.  But  it  can  hardly  be  sup- 
posed, that,  if  a  convention  is  made,  it  would  not  em- 
brace all  analogous  questions.  And  it  is  to  be  re-' 
membered  that  England  is  bound  by  the  "  declaration  " 
of  the  congress  of  Paris,  though  Lord  Derby  contested 
its  policy  in  parliament,  to  consider  the  four  princi- 
ples, which  are  the  object  of  the  declaration,  as  indivis- 
ible, and  not  to  enter  into  any  arrangement  in  regard 
to  the  application  of  maritime  law,  in  time  of  war,  which 
did  not  rest  on  them  all.  Among  these  rules  is  the 
abolition  of  privateering,  which,  even  with  the  amend- 
ment proposed  by  Mr.  Marcy,  is  of  doubtful  advantage 
to  us,  and  which,  nakedly,  as  now  included  in  the  dec- 
laration, would  not  receive  the  vote  of  a  single  senator. 

11 


122  VISITATION   AND    SEARCH. 

Besides,  though  the  minor  powers,  whose  assent  in  any 
event  is  unimportant,  are  bound  to  England  by  treaty, 
no  arrangement  could  well  be  made  without  the  par- 
ticipation of  France. 

Any  agreement  which  might  be  made  with  reference 
to  ascertaining  the  nationality  of  a  vessel  at  sea,  even 
if  carried  out  in  good  faith,  would  either  be  wholly 
nugatory,  or  would  be  open  to  all  the  objections  arising 
from  the  maritime  superiority  of  England,  which  have 
been  opposed  to  her  previous  pretensions ;  and  which 
can  only  be  met  by  our  changing  our  entire  policy,  and 
maintaining  a  navy  equally  large  with  that  of  Great 
Britain. 

The  French  government,  it  was  stated  in  the  House 
of  Lords,  have  proposed  that  a  boat  from  a  public  ship 
should  go  along-side  of  a  merchantman,  but  without  the 
right  to  go  on  board  unless  invited.  This  evidently 
does  not  meet  the  British  pretensions ;  and  it  is  not  very 
clear  what  good  or  what  harm  it  could  do.  The  boat 
may  now,  according  to  the  decision  of  the  Supreme 
Court  of  the  United  States  in  the  case  of  The  Marianna 
Flora,  go  along-side ;  but  the  merchantman  is  under  no 
obligation  to  lie  by  or  wait  the  approach  of  the  ship  of 
war. 

Having  got  rid  of  the  claim  to  enter  by  right,  it  is 
hoped  that  no  conventional  grant  to  invade  our  terri- 
tory on  the  great  ocean  will  be  accorded.  The  view 
taken  of  old  by  the  British  government,  in  reference  to 
impressment,  should  defeat  any  new  arrangement  for 
according  search  under  any  circumstances.  Mr.  Guizot, 
in  the  discussions  on  the  Quintuple  Treaty,  remarked, 
that  there  was  a  distinction,  on  that  account,  between 
France  and  the  United  States.  "  The  Americans/'  said 


VISITATION  AND    SEARCH.  123 

he,  "earnestly  resist  every  right  of  visitation  on  the 
part  of  England,  under  whatsoever  form  it  may  be  pre- 
sented; and,  in  my  opinion,  they  are  right.  If  the 
English  attempted  to  search  for  their  sailors  on  board 
of  French  vessels,  we  should  certainly  resist  them,  as 
the  Americans  do." 1 

It  is  not  improbable,  that  England,  with  the  changes 
introduced  in  the  manning  of  the  navy,  would  now  be 
disposed  to  yield  for  any  verification  of  the  flag  in 
peace,  that  might  give  the  semblance  of  a  sanction  to 
her  ancient  pretensions,  the  claim  of  impressing  seamen 
from  our  ships,  which,  as  the  right  of  search  for  contra- 
band remains,  might,  with  as  much  reason  as  before,  be 
practised,  even  if  we  became  parties  to  the  "  Paris  dec- 
laration." But,  though  we  have  ever  been  surprised  that 
its  renunciation,  as  well  as  the  total  disclaimer  of  the 
right  of  visitation  and  search,  in  peace,  was  not  made  by 
Mr.  Webster  a  condition  of  acceding  to  the  Ashburton 
Treaty,  it  may  well  be  questioned  whether  we  should 
now  yield  any  thing  for  the  abandonment  of  a  usurpa- 
tion which  no  power  is  hereafter  likely  to  exercise 
towards  the  United  States.  Much  less  would  we  be 
inclined  to  subject  our  mercantile  marine  to  a  perpetual 
surveillance,  to  obtain  an  exemption  from  inconven- 
iences, in  any  event,  confined  to  the  temporary  and  ex- 
ceptional periods  of  war. 

The  interests  of  our  country  are  undoubtedly  safe 
with  the  responsible  chiefs  to  whom  our  foreign  affairs 
are  primarily  confided.  No  other  citizens  possess  the 
same  experience  in  regard  to  our  European  relations 
as  the  President  and  Secretary  of  State,  and  whatever 

1  Proces  Verbaux  de  la  Chambre  des  Deputes,  torn.  1,  p.  81. 


124  VISITATION   AND    SEARCH. 

they  might  recommend  ought  to  receive  the  most  favor- 
able consideration.  But  it  is  believed  that  no  arrange- 
ment by  which  foreign  ships  can  be  permitted  to  detain 
our  merchantmen  on  the  high  seas,  in  time  of  peace, 
can  obtain  the  constitutional  ratification  of  the  Senate ; 
and  it  is  hoped  that  a  conviction  of  that  fact  will  pre- 
vent Lord  Derby  and  Lord  Malmesbury  from  pressing 
the  subject  further  on  the  attention  of  our  administra- 
tion. For  the  interests  of  both  countries,  and  as  a 
means  of  avoiding  future  collisions,  our  maritime  rights 
should  be  allowed  to  repose  on  the  authority  of  the  law 
of  nations  as  now  understood  by  England  and  Amer- 
ica ;  and  with  the  disavowal  of  the  recent  aggressions, 
and  indemnity  for  such  of  our  citizens  as  have  suffered 
from  them,  we  trust  that  there  may  be  an  end  of  all 
entangling  alliances,  in  regard  either  to  African  slavery 
or  inter-oceanic  communications;  and  that  the  princi- 
ples of  Washington's  Farewell  Address  may  again  pre- 
vail in  the  national  councils. 

Looking  simply  to  our  own  interests,  we  of  course 
require  no  further  proceedings  on  the  part  of  Great 
Britain  for  the  recognition  of  our  rights ;  but  the  best 
evidence  that  England  can  give  in  furtherance  of  her 
acknowledgment  of  the  law  of  nations,  as  binding 
equally  on  her  relations  with  the  strong  and  the  weak, 
would  be  the  repeal  of  her  statute  of  1839,  which  has 
lost  none  of  its  objectionable  features  since  they  were 
so  forcibly  portrayed  by  the  Duke  of  Wellington,  and 
of  that  of  1845,  which,  though  directed  against  a  single 
power  by  name,  is  no  less  an  assault  on  the  independ- 
ence of  nations.  It  is  true  that  an  act  of  parliament 
can  constitute  no  international  obligation ;  still  it  affords 
the  protection  of  his  government  to  the  officer  acting 


VISITATION   AND    SEARCH.  125 

under  it.  That  it  is  not  a  mere  Indum  fitlmcn,  the 
condemnation  of  Portuguese  vessels  formerly,  and  of 
Brazilian  vessels  more  recently,  avowedly  for  offences 
against  merely  the  municipal  law  of  England,  is  a  suffi- 
cient evidence;  while  the  United  States  have  adequate 
ground  of  complaint  in  the  mode  in  which  the  laws 
investing  the  officers  of  the  British  navy  with  a  general 
police  jurisdiction  have  been  executed. 

This  brings  us  to  a  direct  consideration  of  the  expedi 
ency  of  terminating  the  obligations  imposed  by  the 
eighth  article  of  the  Ashburton  Treaty.  The  President's 
objections,  when  a  member  of  the  Senate,  to  that  Con- 
vention, have  been  inserted  in  the  appropriate  place.1 
Those  of  General  Cass,  besides  what  might  have  been 
inferred  from  his  opposition  to  the  Quintuple  Treaty,, 
appear  in  a  correspondence,  commencing  with  a  de- 
spatch from  Paris  to  the  Secretary  of  State,  under  date 
of  the  3d  of  October,  1842,  and  which  was  protracted 
beyond  his  diplomatic  service.  To  his  argument,  so 
well  sustained  by  what  immediately  followed  on  the 
part  of  England,  against  any  arrangement  not  preceded 
by  a  formal  renunciation  of  her  pretensions,  allusion  has 
already  been  made.  He,  also,  forcibly  referred  to  the 
provision  for  the  African  squadron.  Departing,  for 
reasons  which  would  equally  authorize  interference  in 
any  other  matter  interesting  to  humanity,  from  our  prin- 
ciple of  avoiding  European  combinations  upon  subjects 
not  American,  it  rendered  it  obligatory  on  us  to  place 
our  municipal  laws  beyond  the  reach  of  Congress.2 
Nothing,  of  which  we  are  aware,  has  since  occurred  to- 


See  p.  52,  supra. 

29  Cong.  1  Sess.  Doc.  Senate,  Ex.  Doc.  Vol.  VIII.  No.  377 

11* 


126  VISITATION   AND    SEARCH. 

make  that  desirable  which  was  then  objectionable.  On 
the  contrary,  however  we  may  regard  the  palliative,  Mr. 
"Webster  adopted  the  African  squadron  as  a  means  of 
escaping  from  the  alternative  of  either  acknowledged 
submission  to  British  pretensions  or  of  forcible  resist- 
ance. The  voluntary  acquiescence  by  England  in  the 
law  of  nations,  as  expounded  by  General  Cass,  leaves 
the  sacrifices  imposed  by  the  convention  wholly  without 
a  motive. 

If,  under  other  circumstances,  any  advantage  could 
arise  from  the  United  States  being  a  party  to  the  block- 
ade of  the  coast  of  Africa,  a  conclusive  reason  for  the 
withdrawal  of  our  squadron  is  now  to  be  found  not 
merely  in  the  secondary  position  in  wrhich  it  stands  to 
the  English,  but  in  the  practical  effect  of  the  cooperation 
with  the  British  cruisers  and  of  the  acts  of  parliament 
in  question,  to  render  abortive  all  attempts  to  punish  our 
own  citizens,  engaged  in  a  violation  of  our  own  laws. 
This  was  clearly  foreseen  by  Mr.  Buchanan  in  1842, 
and  is  the  necessary  consequence  of  Great  Britain's 
holding  a  power  of  attorney  from  all  the  secondary 
maritime  States,  as  well  as  of  her  much  more  numer- 
ous fleet.1 

It  appears,  from  what  has  been  heretofore  stated,  that, 
so  far  from  there  being  an  efficient  understanding  be- 


1  In  1854,  the  British  had  twenty-seven  vessels,  mounting  three  hundred 
guns ;  the  United  States  four  vessels,  mounting  eighty  guns,  being  the  num- 
ber required  by  treaty.  The  fact  of  the  omission  of  the  provision,  con- 
tained in  the  preceding  treaties  between  England  and  France,  fixing  the 
proportionate  force  of  the  squadrons  on  the  coast  of  Africa,  was  made, 
in  the  Chamber  of  Deputies,  a  serious  objection  to  the  Treaty  of  1841.  It 
was  feared  that  England  might  thereby  obtain  a  preponderance,  but  Mr. 
Guizot  explained  it  as  arising  from  the  inability  of  the  other  powers  to  supply 
their  quotas.  Proces  Verbaux  de  la  Charnbre  des  Deputes,  torn.  7,  p.  68. 


VISITATION   AND    SEARCH.  127 

tween  the  British  and  American  squadrons,  a  compre- 
hensive system  of  compounding  felony  has  for  years  been 
adopted  on  the  part  of  British  officers  to  protect,  for 
their  own  pecuniary  interest,  Americans  engaged  in  the 
slave-trade,  if  there  be  any  such,  from  amenability  to 
their  own  cruisers,  by  encouraging  them  to  throw  their 
papers  overboard,  and  to  be  taken  without  any  evidence 
of  their  nationality. 

General  Cass  thus  explains,  in  his  note  to  Lord  Napier, 
these  transactions,  which  have  been  noticed  on  the  au- 
thority of  American  naval  officers.  "The  reason  assigned 
for  this  procedure  is  said  to  be,  that  the  punishment  of 
this  offence,  by  the  laws  of  the  United  States,  being  death, 
persons  found  committing  it  under  the  American  flag,  if 
they  cannot  escape,  prefer  to  be  captured  by  British 
cruisers,  with  the  chance  of  impunity,  or,  at  any  rate,  of 
a  less  penalty  than  capital  punishment.  The  crew  is 
landed  on  the  nearest  part  of  the  coast,  while  the  vessel 
is  sent  to  an  admiralty  court  for  condemnation,  and  the 
proceeds,  or  a  considerable  portion  of  them,  distributed  as  prize 
money,  and  an  allowance  made  for  each  of  the  captured  slaves  ; 
and  such  slaves,  it  is  understood,  are  transported  under 
prescribed  regulations  defining  their  condition  to  the 
British  tropical  possessions  in  America."1 

It  was  not  from  those,  to  whom  sympathy  with  slave- 
dealers  or  slave  owners  could  be  imputed,  that  the  most 
earnest  movements  for  the  "withdrawal  of  our  African 
squadron  have  proceeded.  Mr.  Clay  presented,  January 
15, 1851,  a  petition  from  Rhode  Island,  signed  by  all  the 
executive  and  judicial  officers,  the  members  of  the  two 
houses  of  the  legislature,  the  faculty  of  the  University, 

1  Mr.  Cass  to  Lord  Napier,  April  10,  1858. 


128  VISITATION   AND    SEARCH. 

and  many  others,  distinguished  by  their  position  and  in- 
fluence in  the  State.  The  memorial  declared  that  the 
experiment  had  utterly  failed,  and  proposed  in  its  stead 
colonization  in  Africa  as  the  only  means  of  effecting  an 
entire  suppression  of  the  slave-trade.  The  eminent 
statesman  from  Kentucky,  in  concluding  his  speech, 
said :  "  I  doubt  very  much  whether  there  would  not  be 
less  loss  of  African  life,  if  there  were  no  attempt  what- 
ever to  suppress  the  slave-trade  by  means  of  these  squad- 
rons, than  there  is  in  consequence  of  keeping  them ;  the 
result  of  which  is  merely  to  multiply  adventurers,  to 
send  out  more  ships,  to  run  more  chances,  to  take  more 
risks,  in  order  to  secure  the  object  of  transporting  the 
slaves  to  the  Brazils  or  to  Cuba  from  the  coast  of  Africa. 
Sir,  I  believe  there  is  no  effectual  remedy  for  the  sup- 
pression of  the  slave-trade  but  the  occupation  in  Africa 
of  the  coast  itself,  and  stopping  it  at  the  threshold  where 
it  begins.  By  the  eighth  article  of  the  Treaty  of  Wash- 
ington we  were  only  bound  to  continue  that  squadron 
for  a  period  of  five  years.  The  five  years  have  long 
since  expired  —  in  1847 ;  and  yet  we  continue  this 
squadron  down  to  this  time.  Without  reference  to  any 
of  the  subjects  which  I  have  thought  proper  to  present 
to  the  Senate,  without  regard  to  the  suppression  of  the 
slave-trade,  without  reference  to  the  great  interests  of 
colonization,  I  think,  as  a  mere  measure  of  financial 
economy,  it  is  worth  considering  whether  we  shall  ex- 
pose the  lives  of  our  gallant  seamen  in  such  an  inhos- 
pitable climate,  at  such  a  vast  expense,  reaping  so  little 
benefit  from  the  operation." ] 

As  regards  the  subject  of  the  memorial,  it  may  be 

1  Cong.  Globe,  1850-1,  p.  246. 


VISITATION   AND    SEARCH.  129 

remarked  that  the  condition  of  the  free  blacks,  equally 
repudiated  by  the  non-slaveholding  and  slaveholding 
States,  is  one  which  commends  itself  more  to  the  sym- 
pathies of  the  philanthropist  than  that  of  any  class 
which  has  a  fixed  and  recognized  status  in  our  social 
organization.  In  most  cases,  at  the  South,  expatri- 
ation has  become  the  necessary  concomitant  of  eman- 
cipation, while  the  constitutions  of  Indiana  and  of  other 
Northwestern  States  contain  express  prohibitions  against 
the  admission  into  those  States  of  free  colored  persons 
under  any  circumstances  whatever ;  nor  was  such  a  pro- 
vision deemed  an  objection  to  the  constitution  proposed 
for  Kansas,  by  that  political  party  which  made  the  ex- 
clusion of  slavery  from  the  new  States  a  fundamental 
principle.  Everywhere  they  are  placed  under  practical 
disabilities,  and  meet  with  no  sympathy  from  the  free 
white  laborer.  The  contest  now  going  on  in  Missouri  for 
the  abolition  of  slavery  has  no  connection  with  their 
emancipation,  the  exclusion  of  free  persons  of  color  being 
a  fundamental  principle  of  the  State  constitution.  It  is 
discussed  as  an  economical  question ;  and  the  success  of 
its  advocates  would  lead  not  to  the  liberation  of  the 
slaves,  but  to  their  sale  and  removal  elsewhere,  where 
the  climate  renders  more  requisite  the  employment  of 
that  species  of  labor. 

In  our  large  cities  of  the  North,  colored  men,  if  not 
by  law,  by  a  prejudice  equally  potent,  are  excluded 
from  mechanical,  and  most  other,  except  menial,  employ- 
ments. Even  in  Rhode  Island,  where  the  negroes  have 
(in  disregard  of  the  construction  which  the  Supreme 
Court  of  the  United  States  have  given  the  term)  prac- 
tically accorded  to  them,  as  included  in  the  denomina- 
tion of  "  native  citizens  of  the  United  States,"  political 


130  VISITATION   AND    SEARCH. 

privileges  denied  to  naturalized  citizens,  the  most  marked 
social  distinction  is  established  by  law.  No  person  hav- 
ing the  slightest  particle  of  black  blood  can  contract  a 
legal  marriage  with  a  white,  and  even  the  minister  at- 
tempting to  solemnize  such  a  marriage  is  subject  to  a 
penalty.1 

If  the  old  States  of  the  North  and  East  have  abstained 
from  the  same  legislation  as  the  new  free  States,  it  may 
well  be,  because  an  extirpation  more  rapid  than  even 
that  which  attends  the  red  man  in  contact  with  civiliza- 
tion has  left  among  them,  few  descendants  of  their  for- 
mer slaves ;  and  were  it  not  for  the  immigration  of  fugi- 
tives and  free  negroes  from  the  South,  in  some  of  them 
the  race  would  have  already  ceased  to  exist.  Among 
the  late  proceedings  of  the  Canadian  Parliament  was  a 
proposition  to  impose  a  capitation  tax  on  all  persons  of 
color  emigrating  there  from  any  foreign  country. 

If  it  be  feasible  to  give  such  an  expansion  to  coloniza- 
tion as  would  admit  of  its  being  a  refuge  for  those  free 
negroes  whom  the  policy  of  all  the  States  excludes  from 
incorporation  with  the  white  inhabitants,  rendering  their 
establishment  a  means  of  general  amelioration  to  the  Afri- 
can continent  as  proposed  by  the  Rhode  Island  memorial, 
the  expenditure  for  the  abolition  of  the  slave-trade  might 
be  made  beneficially  to  affect  interests  common  to  all  the 
States  of  the  Union ;  and  the  twelve  or  thirteen  millions 
wasted  since  1842  on  the  African  squadron  would  have 
laid  the  foundation  of  valuable  colonies.  To  promote 
such  an  object,  by  making  the  descendants  of  Africans 
contribute  to  the  civilization  of  their  own  continent,  was 
the  purpose  for  which  the  Colonization  Society  was  es- 

1  Revised  Statutes  of  Rhode  Island,  Ed.  1857,  p.  312. 


VISITATION  AND    SEARCH.  131 

tablished  in  1817, —  the  founders  of  which  included 
some  of  the  most  eminent  citizens  of  the  South.  It  has 
not,  however,  been  a  scheme  generally  acceptable  to 
those  for  whose  special  benefit  it  was  undertaken.  In 
1850,  the  African- American  population  of  the  Republic 
of  Liberia,  which  it  founded  on  the  coast  of  Africa,  in- 
cluding the  Maryland  Colony,  amounted  to  only  7,000 ; 
now  supposed  to  be  10,000.  There  are  upwards  of 
300,000  natives  within  its  territory.1 

In  an  article  of  this  character,  a  subject  itself  suscep- 
tible of  extended  discussion,  and  presenting  some  points 
of  debatable  policy,  cannot  be  adequately  considered. 
With  the  effects  of  metropolitan  legislation  on  the  Brit- 
ish and  French  colonies  before  them,  we  are  not  insen- 
sible of  the  jealousy  naturally  entertained  of  any  sug- 
gestions from  other  sources,  by  those  whose  very 
existence,  and  that  of  their  families,  might  be  jeoparded 
by  permitting  the  intervention  of  the  federal  govern- 
ment or  of  the  non-slaveholding  States  in  matters  con- 
nected with  their  peculiar  institutions.  And  however 
strong  the  argument  in  favor  of  African  colonization, 
which  the  policy  now  prevailing  in  most  of  the  States 
would  seem  to  offer  as  the  sole  condition  of  practical 
freedom  for  the  emancipated  portion  of  the  race,  there 
are  circumstances  which  present  themselves  in  the 
course  of  this  examination,  well  calculated  to  impair  the 
confidence  heretofore  existing  in  the  project. 

In  1854,  a  resolution  was  offered  in  the  Senate,  when 
in  secret  session,  by  Mr.  Slidell,  of  Louisiana,  to  abrogate 
the  eighth  article  of  the  Treaty  of  1842.  The  Commit- 
tee  on  Foreign  Relations  reported  in  favor  of  the  prop- 

1  Commercial  Relations  of  the  United  States,  Vol.  I.  p.  476. 


132  VISITATION   AND    SEARCH. 

osition,  after  stating,  that,  for  the  twelve  years  that  we 
had  then  kept  up  a  squadron  at  an  annual  cost  of 
$800,000,  the  captures  had  only  amounted  to  fourteen 
ships ;  and  that  Sir  Charles  Hotham,  who  had  for  many 
years  commanded  the  British  squadron,  had  declared  the 
whole  measure  inefficient,  and  that  the  slave-trade  de- 
pended entirely  on  the  demand.  In  fact>  the  exporta- 
tion of  negroes  had  increased  every  year  since  the  Ash- 
burton  Treaty  went  into  operation.  If  the  market  of 
Cuba  could  be  closed,  there  would  be  an  end  to  the 
traffic. 

On  26th  of  January,  1856,1  the  injunction  of  secrecy 
was  removed  from  Mr.  SlidelTs  resolution ;  but  no  further 
proceedings  seem  since  to  have  taken  place  in  reference 
to  the  subject.  Nor  does  it  appear  that  the  withdrawal 
of  the  African  squadron,  in  conformity  with  the  provis- 
ions of  the  treaty,  was  proposed  in  connection  with  the 
discussion  of  the  recent  transactions  in  the  Gulf  of  Mex- 
ico. But  the  propriety  of  abrogating  the  treaty  has 
been  referred  to  by  Mr.  Dallas,  whose  position  affords 
him  peculiar  facilities  for  examining  its  practical  opera- 
tion. In  speaking  of  the  disavowal  of  the  capture  of 
The  Panchita,  as  founded  exclusively  on  the  stipulations 
of  the  Treaty  of  1842,  in  his  note  of  October  9, 1857,  to 
Mr.  Cass,  he  says :  "  You  will  pardon  me  for  suggesting, 
that,  while  this  pretension  of  a  right  to  supervise  and 
reform  the  commercial  pursuits  of  other  countries,  by 
the  means  of  visit  and  search,  is  thus  covertly  maintained 
against  the  frank  remonstrances  of  the  government  of 
the  United  States,  it  may  be  doubted  whether  it  be  con- 


1  Cong.  Globe,  1  Sess.  34  Cong.  1855-6,  p.  147;  34  Cong.  1   Sess.  Senate 
Keport,  195. 


VISITATION   AND   SEARCH.  133 

sistent  with  the  national  dignity  to  prolong  the  excep- 
tionable compact,  under  whose  express  terms  alone  an 
immunity  is  recognized." 

It  was  not  contemplated  by  either  Mr.  Clay  or  Mr. 
Slidell  (indeed,  the  latter  expressly  disavows  any  such 
intention),  that  the  termination  of  the  convention  with 
England  should  affect  the  penalties  against  the  slave- 
trade,  nor  could  that  be  the  case  without  further  legis- 
lation. Yet  it  may  be  well  questioned  whether,  for  the 
object  proposed,  a  punishment  other  than  a  capital  one, 
which  (considering  the  equivalent  commerce  now  car- 
ried on  by  England  and  France  in  coolies  and  African 
"  emigrants "  under  legal  sanction)  can  scarcely  meet 
the  sentiment  of  mankind,  might  not  be  advantageously 
substituted.  A  milder  penalty  would,  at  all  events,  be 
more  certain  to  be  applied.  Even  in  cases  of  murder, 
in  several  States  of  the  Union,  capital  punishment  is 
abolished. 

In  considering,  in  connection  with  another  provision 
of  the  Ashburton  Treaty,  the  encouragement  now  being 
given  to  the  African  slave-trade  or  its  Asiatic  substitute, 
and  which,  instead  of  being  diminished,  has  been  vastly 
augmented,  by  the  mistaken  philanthropy  of  England 
and  France  in  regard  to  their  West  India  and  other 
colonial  possessions,  the  very  small  practical  result  that 
the  most  ardent  friend  of  the  system  can  now  hope  to 
derive  from  the  continuance  of  our  squadron  will  be  suf- 
ficiently apparent.  But  as  the  French  treaty  of  1845, 
and  ours  of  1842,  have  been  usually  placed  in  the  same 
category,  it  may  not  be  irrelevant  here  to  notice,  that, 
since  the  conventions  of  France  with  England  have  been 
allowed  to  expire,  the  semi-official  organs  of  the  former 
announce  that  "  her  reduced  squadron  on  the  coast  of 

12 


134  VISITATION   AND    SEARCH. 

Africa  is  only  maintained  to  protect  her  commerce 
from  the  inquisition  and  annoyance  of  the  English 
cruisers." 

The  negotiators  of  the  treaty  refer,  in  the  ninth  arti- 
ticle,  to  shutting  "  all  markets  against  the  purchase  of 
African  negroes/'  as  the  only  efficient  mode  of  suppress- 
ing the  traffic.  Without  now  discussing  the  coolie  trade 
inaugurated  by  England,  nor  referring  to  the  limited 
supply  of  Africans  for  her  colonies  which  the  proceed- 
ings for  the  suppression  of  the  slave-trade  afford  her, 
nor  to  the  trade  of  Turkey  and  other  Mahometan  and 
Pagan  countries  in  African  negroes,  as  well  as  in  Chris- 
tian slaves  from  Circassia  and  Georgia,  in  1842  the 
great  slave-markets  were  Brazil  and  Cuba.  The  former 
no  longer  exists,  not  in  consequence  of  the  crusade 
against  the  slave-trade,  but  rather  of  its  cessation. 
The  true  cause  of  the  change  is  thus  given  by  M. 
Pereira  da  Silva,  in  the  Revue  dcs  deux  mondes :  "  Not 
only  the  statesmen  of  Brazil  condemn  the  trade,  but  all 
classes  of  the  people.  It  is  desirable  that  there  should 
be  no  mistake  as  to  the  reason  of  this  modification  of 
public  sentiment.  It  is  not  owing  to  the  British  govern- 
ment. While  the  English  cruisers  were  endeavoring  to 
stop  the  trade  even  in  the  Brazilian  seas,  it  increased 
every  day;  their  proceedings,  under  pretence  of  sup- 
pressing it,  often  injured  the  honest  and  legitimate 
interests  of  Brazilian  citizens,  and  raised  the  just  indigna- 
tion of  the  country  against  England.  The  slavers  took 
advantage  of  this  feeling  to  enlist  the  sympathies  of  the 
inhabitants  by  making  them  believe  that  that  power 
was  only  influenced  by  selfish  motives,  and  that  it 
wished  to  diminish  the  productions  and  riches  of  Brazil 
to  the  advantage  of  its  colonies,  whose  products  were 


VISITATION   AND    SEARCH.  135 

similar.  When,  however,  the  imperial  government 
made,  in  1850,  a  frank  and  loyal  appeal  to  the  country, 
enlightening  it  upon  its  true  interests,  present  and 
future,  the  Brazilians  appreciated  it,  and  gave  to  the 
measure  a  support,  which  becomes  every  day  more  and 
more  secure.  It  is  gratifying  to  be  able  to  affirm  that 
the  trade  is  no  longer  possible  in  Brazil." 1 

As  to  Cuba,  a  consideration  of  the  relations  which 
have,  with  some  exceptional  periods,  existed  for  a  series 
of  years  between  England  and  Spain,  might  have  hereto- 
fore rendered  it  at  least  questionable  whether  the  former 
power  is  sincere  in  its  efforts  to  suppress  the  last  of  the 
old  marts  for  African  slaves,  and  with  whose  extinction 
all  apologies  offered  for  the  maintenance  of  its  maritime 
police  would  cease.  Great  Britain  has  treaties  with 
Spain,  which,  if  faithfully  executed,  would  at  least  pre- 
vent the  landing  of  any  slaves  in  the  West  Indies ;  and 
if  she  did  not  choose  to  make  the  infraction  of  them  a 
casus  belli)  no  greater  objection  from  its  being  a  violation 
of  the  independent  sovereignty  of  Spain  could  apply  to 
her  giving  them  effect  through  parliamentary  enactments, 
than  in  the  cases  of  Portugal  and  Brazil.  Indeed,  it  has 
been  understood  that  both  Spain  and  England  have  re- 
garded the  continued  protection  of  the  latter  to  be 
essential  to  the  maintenance  of  the  existing  authority 
of  the  former  in  Cuba ;  but  in  the  proposition  for  the 
tripartite  convention  made  to  us  by  France  and  Eng- 
land, and  which  was  so  eloquently  replied  to  by  Mr. 
Everett,  as  Secretary  of  State,  on  the  first  of  Decem- 
ber, 1852,  no  consideration  connected  with  the  sup- 

1  Revue  des  deux  mondes,  15  April,  1858,  p.  832. 


136 


VISITATION   AND    SEARCH. 


pression  of  the  slave-trade  entered.1  On  the  contrary, 
when,  during  the  preceding  year,  the  presence  of  Eng- 
lish and  French  squadrons  in  the  Gulf  of  Mexico,  on  the 
alleged  ground  of  preventing  the  landing  of  adventurers 
with  hostile  intent  in  Cuba,  was  complained  of  as  consti- 
tuting a  sort  of  police  over  the  seas,  in  our  immediate 
vicinity,  no  justification  was  offered,  based  on  any  design 
to  carry  out  an  object  of  humanity  in  which  the  three 
nations  were  supposed  to  be  equally  interested,  but  the 
door  was  opened  by  new  pretensions  to  a  further  exer- 
cise of  maritime  surveillance. 

This  subject  has  not  altogether  escaped  the  notice  of 
those  members  of  parliament  whose  opposition  to  the 
slave-trade  was  based  on  moral,  and  not  political,  grounds. 
It  has  been  fully  shown,  that,  as  to  Cuba,  the  whole  sys- 
tem for  the  suppression  of  the  slave-trade,  even  as 
regards  those  captured  and  condemned  by  the  mixed 
tribunals,  has  entirely  failed.  If  vessels  are  condemned 
at  Havana,  which,  from  the  constitution  of  the  court, 
seldom  happens,  and  the  slaves  are  declared  free,  inas- 
much as  by  the  convention  the  custody  is  committed  to 
the  State  in  whose  dominions  they  are  emancipated,  they 
are  handed  over  to  slave-holders  on  the  payment  of  cer- 
tain fees,  by  which,  it  is  said,  the  public  charities  of  the 
island  are  sustained.  From  time  to  time  their  names  are 
inserted  in  the  registry  in  the  place  of  the  slaves  who 
happen  to  die. 

A  suggestion,  in  1854,  from  an  independent  member 
of  parliament,  that  there  should  be  no  interference  on 
the  part  of  the  British  government  to  prevent  Cuba 

1  32  Cong.  2d  Sess.  Senate,  Ex.  Doc.  Xo.  13. 


VISITATION  AND    SEARCH.  137 

passing  to  the  United  States,  received  a  prompt  response 
from  a  minister  of  the  crown,  showing  that,  at  that  time 
at  least,  opposition  to  our  aggrandizement  was  para- 
mount to  the  suppression  of  the  slave-trade.1 

A  proposition  to  apply  to  Spain  the  same  policy  as 
had  been  adopted  towards  Portugal  and  Brazil,  was  op- 
posed by  Lord  Palmerston  for  reasons  which,  supposing 
the  British  course  in  reference  to  the  other  cases  defensi- 
ble, would  strengthen,  rather  than  impair,  the  ground  for 
intervention.2  Brazil  they  coerced  because  they  had 
no  convention  with  her,  while,  from  the  mere  fact  of 
Spain  having  made  a  treaty,  she  was  at  liberty  to  vio- 
late its  provisions,  as  well  as  all  previous  engagements, 
with  impunity. 

But  it  is  not  impossible,  if  England  has  renounced, 
without  any  arriere  pensee,  her  maritime  aspirations, 
that  among  the  fruits  of  our  recent  diplomatic  vic- 
tory may  be  the  consummation  of  an  object,  which, 
though  never  attempted  to  be  attained,  despite  the 
many  provocations  that  Spain  has  given  us,  by  any  at- 
tack on  the  legitimate  rights  of  other  nations,  has  long 
been  deemed  essential  to  the  security  of  an  important 
section  of  the  Union,  while  its  acquisition  would,  through 
the  markets  opened  to  the  merchants  and  manufacturers 
of  the  North  and  East,  contribute  immeasurably  to  our 
general  national  prosperity. 

It  is  also  a  happy  circumstance  as  regards  the  gen- 
eral peace  of  the  world,  that  there  is  at  this  con- 
juncture a  ministry  whose  political  history  is  not 


1  Hansard's  Parliamentary  Reports,  Vol.  CXXXIL,  p.  128. 
-  Hansard's  Parliamentary  Reports,  Vol.  CXLYI.  p.  1492. 

12* 


138  VISITATION   AND    SEARCH. 

identified  with  a  system,  of  which  Lord  Brougham, 
and  the  Bishop  of  Oxford,  who  inherits  the  prin- 
ciples, with  the  name,  of  Wilberforce,  are  now  the 
exponents,  and  whom  all  the  reminiscences  of  St.  Do- 
mingo might  not  deter  from  an  attempt,  in  which  Lord 
Palmerston  might  have  concurred,  to  Africanize  Cuba, 
in  preference  to  an  effectual  suppression  of  the  slave- 
trade  by  its  cession  to  the  United  States.  "  I  must  say," 
remarked  Lord  Malmesbury  in  the  late  debate  on  the 
British  aggressions,  "  that  the'  conduct  of  Spain  towards 
us  on  this  question  has  been  marked  by  the  greatest 
ingratitude.  We  have  taken  her  part  on  several  occa- 
sions against  those  whom  she  has  suspected  of  designs 
adverse  to  her.  It  has  always  been  the  policy  of  Eng- 
land and  of  other  European  countries  to  support  Spain, 
and  defend  her  in  the  occupation  of  Cuba  against  hostile 
invasions,  as  well  as  to  prevent  any  agreement  by  which 
she  might  be  induced  to  part  with  it.  But  if  Spain 
continues  to  show  that  utter  want  of  principle  and  that 
utter  and  base  ingratitude  which  she  has  displayed  to- 
wards this  country,  which  has  always  been  her  friend,  I 
do  not  hesitate  to  say  that  she  must  expect  that  indiffer- 
ence will  be  exchanged  for  amity,  and,  instead  of  our 
taking  her  part,  she  must  expect  us  to  leave  her  to 
whatever  consequences  may  ensue,  whether  proceeding 
from  her  present  conduct  or  not." 

On  a  subsequent  occasion,  in  answer  to  a  deputation 
that  waited  on  him  on  the  subject  of  the  slave-trade, 
Lord  Derby  said,  "  with  regard  to  Cuba,  he  agreed  that 
more  could  be  done  by  the  Governor-General  than  by 
any  external  force ;  that  every  exertion  had  been,  and 
was  every  day  being  made,  to  bring  the  Spanish  govern- 


VISITATION   AND   SEARCH.  139 

ment  to  good  faith  in  this  matter ;  and  that  he  trusted 
that  the  result  might  be  brought  about  without  a  resort 
to  coercive  measures." 

The  following,  from  the  London  Times  of  the  14th  of 
July,  is  even  more  significant  of  what  may  be  the 
eventual  policy  of  England  than  the  declaration  of  any 
ministry,  whose  constitutional  tenure  of  office  is  neces- 
sarily ephemeral.  We  insert  the  paragraph,  without 
thinking  it  requisite  to  notice  the  remark  in  reference 
to  the  abuse  of  our  flag,  the  incorrectness  of  which, 
though  ministers  have  not  refrained  from  similar  un- 
warranted assertions,  will  be  apparent  to  any  one  who 
has  attended  to  the  course  consistently  pursued  by  the 
United  States  for  the  suppression  of  the  slave-trade, 
under  every  phase  :  — 

"All  this  time,  if  we  really  wish  to  stop  the  slave- 
trade,  and  are  ready  to  sacrifice  our  national  jealousies 
to  that  object,  we  have  already  hinted  at  a  most  effect- 
ual course.  The  United  States  are,  unfortunately,  not 
above  allowing  the  irregular  use  of  their  flag  in  the 
slave-trade  between  Africa  and  Cuba.  But  they  stand 
rather  too  high  in  the  scale  of  nations,  as  well  as  in  their 
own  esteem,  to  permit  a  slave-trade  into  their  own  ports. 
Cuba  once  annexed,  the  whole  trade  comes  to  an  end,  and  not  a 
port  ivitt  remain  open,  ivhere  the  slaver  can  land  his  ivretched 
cargo.  Spain  has  long  since  forfeited  all  absolute  claim  to  our 
interposition  in  her  behalf.  Indeed,  by  this  time,  we  pre- 
sume, she  would  rather  not  be  assisted  by  us,  be  the 
cause  good  or  bad.  Are  we  then  prepared  to  make  this 
sacrifice  of  national  feeling  for  the  sake  of  that  philan- 
thropy which  we  are  always  preaching  to  the  world  at 
the  point  of  the  bayonet  and  the  mouth  of  the  cannon  ? 
We  ask  no  reply;  we  only  suggest,  that,  if  England 


140  VISITATION  AND   SEARCH. 

chooses  to  regard  the  slave-trade  as  the  greatest  of  hu- 
man crimes,  and  its  extinction  an  object  worth  fleets, 
quarrels,  and  wars,  then  she  may  some  day  be  called  on 
to  prove  her  sincerity  by  acquiescing  in  the  only  means 
to  this  end,  however  disagreeable.  We  only  wish  that 
Spain  could  be  warned  in  time ;  but  warning  is  not  for 
Spain.  Had  she  listened  to  warning,  she  might  still 
have  stood  in  the  first  class  of  nations.  But,  as  far  as 
Spain  is  concerned,  we  must  bow  to  Lord  Palmerston's 
authority.  She  only  regards  force.  Unfortunately,  with 
all  our  cruisers,  we  have  not  the  same  leverage  upon 
her  as  that  in  the  hands  of  our  American  cousins.  We 
may  vainly  attempt  to  watch  her  ports  and  scrutinize 
her  traffic ;  once  they  step  in,  they  will  ivipe  out,  not  only  the 
slave-trade,  but  Cuba  itself,  from  the  list  of  /Spanish  in- 
iquities." 

If  England  really  desires  that  the  traffic  should  cease, 
an  effectual  remedy  would  be  found  in  her  aiding  the 
transfer  of  Cuba,  where  alone,  despite  of  the  treaty 
stipulations  between  her  and  Spain,  importations  now 
take  place.  In  our  hands,  no  one  can  doubt  that  the 
laws,  wrhich  have  not  been  violated  for  half  a  century 
in  the  States  and  Territories  of  the  Union,  would  there 
be  equally  operative,  while  all  apology  for  visitation  and 
search  would  also  be  at  an  end. 

Nor  is  it  an  unimportant  consideration,  so  far  as  hu- 
manity is  concerned,  that  the  slave-trade  in  Chinese  and 
coolies,  which,  as  it  has  been  carried  on  in  British  ships, 
is  attended,  even  according  to  the  official  reports  to  par- 
liament, with  all  the  horrors  that  ever  marked  the 
African  slave-trade,  may  likewise  be  arrested.  And  al- 
though measures  have  been  adopted,  at  the  present  ses- 
sion of  parliament,  having  for  their  object,  by  prohibit- 


VISITATION   AND    SEARCH.  141 

ing  the  carrying  of  Chinese  or  coolies  to  foreign  pos- 
sessions in  British  ships,  to  monopolize  for  the  English 
colonies  the  labor  of  the  Asiatics ;  yet  if  that  law  should 
be  effectual,  it  would  not  seriously  interfere  with  the 
supply  for  Cuba.  The  Revue  des  deux  mondcs  says  that 
the  trade  is  extensively  carried  on  in  French  vessels ; 
and  in  a  late  number  of  the  New  York  Herald,  under 
the  date  of  Havana,  July  23,  1858,  there  is  announced 
the  arrival  of  four  cargoes  of  coolies,  one  under  each 
of  the  following  flags,  —  Chilian,  Peruvian,  Bremen,  and 
Spanish.  Total,  alive,  1,245,  of  whom  thirty-four  were 
females.  Died  on  the  way,  from  natural  causes  or  self- 
violence,  288. 

The  United  States  alone  of  the  three  great  maritime 
powers  have  been  consistent  in  the  prohibition  of  the 
slave-trade,  not  only  the  trade  nominally  so  called,  but 
they  have  effectually  guarded  against  all  evasions.  We 
will  not  recur  to  colonial  times,  when  the  acts  of  the  local 
legislatures  for  its  suppression  received  the  royal  veto  • 
but  though  the  action  of  Congress  under  the  Federal  Con- 
stitution was  restrained  till  1808  with  regard  to  the  then 
existing  States,  all  the  States  had,  through  their  own 
legislation,  prohibited  the  slave-trade  as  early  as  1798  > 
nor  was  it  reopened,  except  by  one  of  them  in  a  single 
instance,  extending  during  a  period  of  four  years.  And 
of  the  slaves  thus  imported  from  1804  to  1808,  more 
than  one  half  were  introduced  on  English  account.1 

The  act  of  1794,  prohibiting  the  carrying  of  slaves  to 
any  foreign  country,  and  which  was  only  preceded  by 
that  of  Denmark  in  1792,  to  take  effect  in  1804,  is  the 

1  Annals  of  Congress,  1819-20,  p.  116. 


142  VISITATION   AND    SEARCH. 

law  on  which  the  United  States  rest  their  claim  of  having 
been  the  pioneer  in  the  abolition  of  the  slave-trade, 
while,  in  1798,  1802,  and  1804,  acts  were  passed  by 
Congress  within  the  scope  of  their  constitutional  powers, 
as  was  supposed  at  the  time,  to  prevent  the  importation 
of  slaves  into  the  Mississippi  and  Louisiana  territories, 
and  to  extend  the  rigor  of  the  enactments  of  1794  in 
respect  to  the  foreign  slave-trade.  In  1807,  which  was 
the  year  that  the  first  British  statute  was  passed,  the 
law  to  abolish  totally  the  slave-trade,  after  the  first  of 
January,  1808,  was  enacted.  The  laws  of  1818  and  1819, 
as  well  as  the  act  of  1820,  making  the  engaging  in  the 
slave-trade  piracy,  have  been  elsewhere  referred  to. 
Nor  did  these  statutes  afford  an  opportunity,  while  hold- 
ing out  to  the  world  a  nominal  prohibition  of  what  all 
had  concurred  in  condemning  as  a  traffic  "  repugnant  to 
the  principles  of  humanity  and  of  universal  morality," 
to  continue  the  introduction  of  African  slaves  under 
another  denomination.  The  whole  policy  of  these  laws 
has  recently  been  examined  by  one  of  the  Justices  of 
the  Supreme  Court  of  the  United  States,  as  well  as  by 
the  chief  executive  officer  in  whose  department  the  sub- 
ject came  up  for  a  decision.  On  both  occasions,  the 
evasion  so  long  existing  in  the  English  colonies  to  repair 
the  consequences  of  the  forced  emancipation  of  their 
slaves,  and  which  is  now  being  practised  in  those  of 
France,  was  proved  to  be  wholly  repudiated  by  Ameri- 
can legislation. 

Judge  Campbell  fully  shows  that  the  terms  of  the 
Constitution  and  the  corresponding  language  of  the  slave- 
trade  acts  apply  to  apprentices  and  all  those  over 
whose  person  there  is  a  power  of  custody  or  control,  no 


VISITATION   AND    SEARCH.  143 

matter  how  limited  the  term  may  be,  for  the  object  of 
compulsory  service  or  labor.1 

In  May  last,  an  application  was  made  to  the  collector 
of  the  customs  at  Charleston,  South  Carolina,  for  a  clear- 
ance of  a  vessel  "  for  the  coast  of  Africa,  for  the  purpose 
of  taking  on  board  African  emigrants,  in  accordance,"  it 
was  stated,  "  with  the  United  States  passenger  laws,  and 
returning  with  the  same  to  a  port  of  the  United  States." 
The  unusual  character  of  the  proposed  transaction  in- 
duced a  reference  to  the  Secretary  of  the  Treasury. 
Mr.  Cobb,  who  is  a  citizen  of  Georgia,  regarding  it  as  a 
violation  of  the  law,  as  well  as  an  attempted  evasion  of 
the  settled  policy  of  the  United  States,  shows  that 
though  the  Acts  of  1794  and  1800  were  confined  in 
their  operation  to  slaves  eo  nomine.,  the  Act  of  1807,  and 
all  subsequent  acts,  are  intended  not  only  to  prevent 
the  introduction  into  the  United  States  of  slaves  from 
Africa,  but  of  any  negro,  mulatto,  or  person  of  color, 
whether  introduced  as  a  slave  or  to  be  held  to  service  or 
labor.  "  Whether  or  not,"  says  the  secretary,  "  the  wis- 
dom of  our  fathers  foresaw,  at  that  early  day,  that  efforts 
would  be  made  under  a  pretended  apprentice  system  to 
renew  the  slave-trade  under  another  name,  I  cannot  un- 
dertake to  say ;  but  the  language  of  the  law,  which 
they  have  left  to  us  on  the  statute-book,  leaves  no  doubt 
of  the  fact,  that  they  intended  to  provide  in  the  most 
unequivocal  manner  against  the  increase  of  that  class  of 
population  by  immigration  from  Africa." 2 

Were  it  necessary  to  produce  any  proof  that  the  sen- 
timents of  the  American  people  on  the  subject  of  the 

1  Charge  to  the  Grand  Jury  in  the  Circuit  Court  at  New  Orleans,  National 
Intelligencer,  June  25,  1858. 
8  Washington  Union. 


144  VISITATION  AND   SEARCH. 

slave-trade  are  unchanged,  it  might  be  found  in  the  res- 
olution, passed  by  the  House  of  Representatives  of  the 
United  States,  on  motion  of  Mr.  Orr,  of  South  Carolina 
(the  present  Speaker),  December  15,  1856.  It  declares 
"  that  it  is  inexpedient,  unwise,  and  contrary  to  the  set- 
tled policy  of  the  United  States,  to  repeal  the  laws  pro- 
hibiting the  African  slave-trade."  This  resolution  had 
only  eight  dissentients  to  183  voting  for  it,  and  of 
those  whose  names  are  recorded  against  it,  several  de- 
clared that  they  voted  "  nay,"  because  they  considered 
the  resolution  uncalled  for.  Had  it  been  a  practical 
question,  the  vote  would  have  been  unanimous.1 

Nor  is  this  opposition  to  the  slave-trade  mere  empty 
declamation,  which  costs  nothing.  It  is  due  to  the  repu- 
tation of  our  country  that  it  should  be  understood,  that, 
while  other  nations,  by  whom  we  are  constantly  vilified, 
clamorous  in  professions  of  philanthropy,  are  meanly 
eluding  those  restrictions  on  which  they  base  their 
claims  to  superior  virtue,  and  are  turning  to  their  own 
profit  usurpations  on  the  sovereignty  of  feeble  States, 
exercised  for  the  ostensible  interest  of  the  African  race, 
the  United  States,  from  considerations  of  humanity 
alone,  are  foregoing  the  indefinite  increase  of  those  pro- 
ductions for  which  they  have  a  monopoly  in  the  mar- 
kets of  the  world.  Nor  is  this  a  sacrifice  restricted  in 
its  consequences  to  one  section  of  the  Union.  Cotton, 
serving  as  the  great  article  of  international  interchange, 
adds  not  less  to  the  resources  of  the  North  and  East 
than  to  those  of  the  slaveholding  States  themselves. 

The  revival  of  the  slave-trade,  with  all  the  horrors  of 
the  middle  passage,  wrould  nowhere  meet  with  greater 

1  Cong.  Globe,  3d  Sess.  34  Cong.  p.  126. 


VISITATION  AND    SEARCH.  145 

opposition,  on  moral  grounds,  than  at  the  South.  It 
is  not  to  be  forgotten  that  it  was  to  the  votes  of  the 
navigating  States  of  New  Hampshire,  Massachusetts,  and 
Connecticut,  against  those  of  Delaware  and  Virginia, 
that  the  slave-trade  was  left  open  from  1800  to  1808  ;J 
while  it  was  a  southern  member  (Mr.  Wright  of  Mary- 
land), who,  in  1823,  proposed  that  "we  agree  to  a  quali- 
fied right  of  search." 2  But  though  the  United  States 
possess  a  population  of  African  descent  of  three  or  four 
millions,  educated  and  trained  tf>  agriculture,  it  is  wholly 
insufficient  to  bring  into  cultivation  those  extensive 
regions,  for  whose  products,  only  limited  by  the  quan- 
tity of  labor  applied  to  them,  the  demand  has  always 
been  more  than  commensurate  with  the  supply.  The 
South,  however,  desires  no  admixture  with  her  native 
American  laborers  of  imported  savages,  but  awaits  for 
new  exploitations  their  natural  increase,  the  rapidity 
of  which  is  the  best  indication  of  the  kind  treatment 
accorded  to  the  American  slaves. 

Indeed,  in  the  ten  years  between  1840  and  1850,  the 
slaves  increased,  without  including  those  who  passed 
into  the  class  of  free  negroes,  from  2,487,455  to  3,204,313, 
while  the  whites,  including  a  foreign  born  population  of 
2,240,535,  only  advanced  from  14,195,695  to  19,553,068 ; 
and  the  free  colored  population,  which  was,  in  1840, 
386,303,  with  all  the  aid  of  emancipation,  was,  in  1850, 
434,495.  In  no  part  of  the  universe  is  the  same  number 
of  Africans  so  well  cared  for  as  in.  the  Southern  States 
of  this  Union.  They  are,  in  the  scale  of  humanity,  as 
much  above  the  condition  of  their  ancestors  and  of  the 


1  Ilildreth's  Hist,  of  the  United  States,  Vol.  III.  p.  51  & 

2  Benton's  Abridged  Debates,  Vol.  VII.  p.  459. 

13 


146  VISITATION   AND    SEAKCH. 

present  inhabitants  of  the  benighted  continent  from 
whence  they  came,  and  of  the  coolies  and  emigrants  of 
the  British  and  French  colonies,  as  they  are  below  the 
standard  of  the  cultivated  white  man.  It  is  not  our 
purpose  to  enter  into  ethnological  discussions  affecting 
distinction  of  races,  nor  to  palliate  the  enormities  that 
attended  the  original  introduction  of  the  negroes  into 
this  country.  But,  as  cognate  to  our  present  inquiries, 
we  would  remark,  that,  if  a  state  of  things,  which,  how- 
ever susceptible  of  amelioration,  experience  proves  to 
be  the  system  best  adapted  to  promote  the  well-being 
of  the  two  races  now  among  us,  if  not  the  only  arrange- 
ment under  which  they  can  continue  to  coexist,  is  left 
undisturbed,  there  need  be  no  fear  of  any  violation  of 
the  statutes  against  the  slave-trade  on  the  part  of  the 
American  planters. 

What  at  an  early  day  most  favorably  distinguished 
the  condition  of  slavery  in  the  British  North  American 
colonies  from  that  of  the  Spanish  and  Portuguese  was, 
that,  while  with  us  the  supply  was  in  a  great  degree 
kept  up  by  the  natural  increase  of  those  originally  im- 
ported, the  African  population  elsewhere  was  recruited 
by  the  annual  introduction  of  fresh  slaves,  the  problem 
to  be  solved  being,  in  what  time  they  could  be  most 
profitably  used  up.  Even  in  the  English  West  Indies, 
before  the  emancipation,  the  slave  population,  amount- 
ing to  558,000  in  1818,  was  diminished  in  twelve  years 
by  60,000,  and  without  including  the  manumissions  in 
the  account.1 

It  may  be  true  that  vessels  belonging  to  or  manned  by 
Americans  are  occasionally  engaged  in  the  foreign  slave- 

1  Edinburgh  Review,  July,  1850,  Art.  VIII. 


VISITATION  AND   SEARCH.  147 

trade,  but  if  that  is  the  case,  the*y  are  in  nowise  con- 
nected with  the  planting  interests,  or  with  the  owners 
of  existing  slaves ;  and  the  fault  is  not  with  the  United 
States,  but  with  those  who  might  control  the  market, 
as  England  could  that  of  Cuba,  where  the  Africans  are 
sold.  If  cases  occur  of  those  engaged  in  the  traffic 
escaping  the  penalty  of  our  laws,  their  impunity,  it  has 
been  explained,  is  caused  by  the  course  pursued  by 
the  British  cruisers ;  and,  if  American  built  vessels  are 
employed  by  foreigners  in  the  trade,  it  is  only  after  a 
forfeiture  of  their  privileges  as  vessels  of  the  United 
States.  It  would  be  difficult,  were  it  possible,  for  the 
government  to  prevent  the  sale  of  merchantmen  abroad. 
Nor  is  it  understood  how  the  fact  of  a  slave  ship,  built  in 
the  United  States  but  belonging  to  foreigners,  implicates 
us  in  the  traffic,  more  than  the  manufacture,  at  Birming- 
ham, of  articles  required  for  the  slave-trade,  does  Eng- 
land. 

The  negro  emancipation  of  the  British  West  Indies 
was  brought  about  mainly  by  a  sentiment,  which  had 
been  incorporated  into  the  minds  of  the  people  of  Eng- 
land, as  a  part  of  their  moral  and  religious  creed ;  while 
the  great  mass  of  them,  (however  as  a  nation  they  might 
be  affected  by  the  prosperous  or  adverse  condition  of 
the  colonies,)  had  individually  no  direct  pecuniary  in- 
terest to  interfere  with  the  gratification  of  their  philan- 
thropy. Nor,  owing  to  the  influence  of  the  periodical 
press,  is  even  the  limited  class  who  influence  legislation 
insensible  to  popular  impulse.  The  Duke  of  Welling- 
ton, in  counselling  delay,  was  not  more  heeded  in  1833 
than  when  he  attempted  in  1839  to  arrest  those  meas- 
ures, —  the  result  of  the  same  spirit,  to  which  the  viola- 


148  VISITATION  AND    SEARCH. 

tion  of  our  flag,  in  disregard  of  the  law  of  nations,  is 
traceable. 

The  colonists,  attracted  by  the  immediate  advantages 
which  the  distribution  of  .£20,000,000  seemed  to  pre- 
sent, and  relying  on  the  long  period  during  which,  under 
another  name,  their  relation  with  their  slaves  was  ex- 
pected to  continue,  did  not  make  even  that  resistance, 
which  their  connection  with  the  diversified  interests  of 
the  mother  country  might  otherwise  have  enabled  them 
to  offer.  Neither  is  it  to  be  understood  that  the  ministry, 
in  yielding  to  the  clamors  of  the  professed  abolitionists, 
had  no  other  object  than  humanity  in  view.  England's 
command  of  the  ocean,  and  her  immense  resources, 
despite  of  the  numerical  strength  of  the  blacks,  precluded 
any  danger  of  a  repetition  in  the  colonies  of  the  catas- 
trophe of  St.  Domingo.  But  undue  confidence  had  been 
placed  in  those  economical  speculations  which  induced 
the  belief,  in  disregard  of  climate  and  of  the  mode  in 
which  the  agriculture  of  those  regions  can  alone  be  car- 
ried on,  that  even  for  tropical  productions  free  labor 
might  profitably  be  made  to  supersede  that  of  slaves. 
The  effect,  which  their  movements  were  to  have  in  stimu- 
lating the  slave-trade  of  those  countries  that  practically 
tolerated  it,  was  therefore  not  considered. 

As  it  was  supposed  that  emancipation,  once  adopted 
in  the  West  Indies  would  be  made  general  throughout 
America,  the  British  government  did  not  reflect  on  the 
advantages  that  they  were  giving  to  rivals  prudent 
enough  not  to  attempt  radical  innovations.  What  were 
their  expectations  on  this  point  is  manifest  from  the 
course  subsequently  pursued  as  to  Texas.  Mr.  Calhoun 
wrote,  as  Secretary  of  State,  to  Mr.  King,  minister,  at 


VISITATION   AND    SEARCH.  149 

Paris,  that  it  was  the  design  of  England  to  avail  herself  of 
the  position  of  that  country,  as  a  neighboring  republic 
looking  to  foreign  support,  in  order  to  operate  through  it 
on  the  domestic  institutions  of  the  Southern  States.1  That 
impression  would  seem  to  have  been  fully  justified  by  the 
extraordinary  despatch  of  Lord  Aberdeen,  of  the  twenty- 
third  of  December,  1843,  to  Mr.  Packenham,  and,  by  his 
instruction,  submitted  to  our  government.  Lord  Aber- 
deen unequivocally  avowed  that  "  Great  Britain  desires, 
and  is  constantly  exerting  herself  to  procure,  the  general 
abolition  of  slavery  throughout  the  world."2  Had  the 
designs  of  England  succeeded,  her  expectation  was,  ac- 
cording to  Mr.  Calhoun,  to  have  compensated  her  losses 
in  the  West  Indies  by  that  preponderance  realized  for 
her  East  Indian  possessions,  which  was  contemplated  at 
the  time  of  the  meeting  of  the  congress  of  Vienna. 

Great  Britain  had  declared  the  political  propagandism 
of  the  French  Republic  to  be  the  apology  for  initiating 
wars  that  lasted  for  a  quarter  of  a  century.  Without 
discussing  the  attack  on  national  independence  involved 
in  both  cases,  it  would  be  much  easier  to  make  one  sys- 
tem of  government  applicable  to  all  countries  than  to 
establish  uniform  regulations,  without  regard  to  the 
character  of  the  population  or  the  nature  of  the  climate, 
with  reference  to  agricultural  labor.  Even  in  England, 
at  this  day,  we  have  vestiges  of  the  feudal  tenures ;  and 
in  many  parts  of  France  predial  servitude  did  not  cease 
till  the  end  of  the  last  century,' while  Russia  is  now  dis- 
cussing a  change  in  her  system  of  serfdom. 

Had  England  succeeded  in  her  proselytism,  the  fate 


1  Cong.  Globe,  Vol.  XIV.  p.  5,  Mr.  Calhoun  to  Mr.  Kin#,  Aug.  12,  1844. 

2  Ibid.  Vol.  XIII.  Part  II.  p.  481. 

13* 


150  VISITATION   AND    SEARCH. 

of  the  Southern  States  would  more  likely  have  been  as- 
similated to  that  of  St.  Domingo  than  to  the  condition  of 
the  British  West  Indies ;  but  in  either  event  the  ruin,  of 
which  she  would  have  been  the  cause,  would  not  have 
been  limited  to  our  own  planters.  The  four  millions 
of  people  in  England  depending  on  the  manufacture  of 
cotton  would  not  have  been  satisfied  to  perish  for  the  fur- 
therance of  anti-slavery  abstractions ;  and  if  Lord  Aber- 
deen had  caused  a  war  of  races  in  the  United  States,  the 
royal  family  and  nobility  of  England  would  probably 
have  reenacted  the  drama  which  inaugurated  the  first 
French  revolution. 

Though  slavery  was  abolished  in  the  British  colonies 
in  1834,  yet  an  intermediate  relation  was  to  exist  be- 
tween the  slaves  and  their  former  masters,  originally 
fixed  at  twelve  and  seven  years  respectively,  for  predial 
and  non-predial  slaves ;  but  which  was  reduced  to  six 
and  four  years,  so  that  the  apprentice  system  did  not 
finally  terminate  till  the  first  of  August,  1S40.1  Scarcely 
had  it  begun  to  operate,  before  it  was  discovered  that  the 
aggregate  labor  of  the  emancipated  blacks  bore  no  pro- 
portion to  what  it  previously  had  been  in  a  state  of 
slavery.  And,  since  the  abolition  has  been  effected,  the 
question  has  constantly  been  how  to  supply  the  defi- 
ciency; while,  to  avoid  offending  the  anti-slavery  party, 
the  use  of  the  appropriate  term  to  designate  the  true 
character  of  the  new  laborers  has  been  sedulously 
avoided. 

As  early  as  March,  1837,  an  order  in  council  was 
issued,  giving  the  consent  of  the  government  to  a  law  of 
the  colonial  authorities  of  British  Guiana,  for  the  irnpor- 

1  British  Statutes  at  Large,  Vol.  LXXIIL  p.  666. 


VISITATION   AND   SEARCH.  151 

tation  of  foreign  laborers,  though  the  introduction  of 
any  from  Africa,  or  islands  peopled  by  an  African  popu- 
lation, was  prohibited.  And  in  July  of  the  same  year, 
by  another  order  in  council,  the  deportation,  on  an  ex- 
tensive scale,  of  Hindoos,  called  "Hill  Coolies,"1  was 
sanctioned.  This  measure  was  the  next  year  vehe- 
mently attacked  by  Lord  Brougham,  who,  recognizing  in 
it  the  slave-trade  in  another  form,  predicted  that  they 
were  about  to  expose  to  that  infernal  traffic  the  whole 
Asiatic  coast.  But  it  was  an  indication  of  how  little 
(notwithstanding  the  hold  that  slavery  abolition  had  on 
the  popular  sentiment)  had  been  effected  beyond  the 
substitution  of  one  race  to  another,  that  Lord  Melbourne, 
then  Prime  Minister,  remarked,  that  "Lord  Brougham's 
ardent  imagination  was  an  unsafe  guide  in  such  matters. 
Slavery  must  exist  as  long  as  men  thought  it  their 
interest  to  use  slave-labor ;  and  passionate  appeals  to 
the  feelings  of  mankind  were  not  alone  sufficient  to  in- 
sure its  abolition." 2 

During  the  administration  of  the  colonies  by  Lord 
Stanley  (Earl  of  Derby),  a  general  recruitment  of  Afri- 
cans, of  course  to  be  considered  nominally  free,  was  only 
resisted  by  the  minister  on  the  ground  that  it  was  pre- 
mature, and  might  excite  the  suspicions  of  the  powers 
united  with  England  in  the  suppression  of  the  slave- 
trade  ;  while  Mr.  Hume,  July  27,  1846,  proposed  the 
suppression  of  the  squadrons  on  the  coast  of  Africa, 
which  had  been  found  so  utterly  inefficient  in  stopping 
the  slave-trade,  and  the  organization  of  a  system  of 
ransom,  which  might  break  down  the  traffic  in  the 


1  Coolie  means  any  East  Indian  laborer,  whether  agricultural  or  domestic. 
3  Animal  Register,  1838,  p.  92.] 


152  VISITATION  AND    SEARCH. 

places  where  it  was  carried  on.  Sir  Eobert  Peel  sus- 
tained Mr.  Hume,  saying,  "  Give  all  the  encouragement 
in  your  power  to  the  immigration  of  laborers,  and  pay 
no  attention  to  imputations  which  you  know  to  be  un- 
founded." l 

It  appears  from  a  parliamentary  statement,  that  there 
had  been  imported,  previous  to  1846,  into  Mauritius,  — 
which  had,  at  the  period  of  emancipation,  28,000  slaves,  — 
86,000  Africans,  either  taken  from  the  slave  ships,  or 
introduced  as  free  immigrants  ;  into  Jamaica,  11,500,  of 
both  classes ;  into  Guiana,  40,000 ;  and  into  Trinidad, 
20,000. 

In  the  session  of  1848,  the  measures  adopted  to  intro- 
duce laborers  from  the  East  Indies  to  Mauritius,  and 
from  the  East  Indies  and  Africa  into  the  West  Indies, 
being  admitted  not  to  have  been  successful,  parliament- 
ary guarantees  were  given  to  colonial  loans  to  the 
amount  of  £660,000,  for  the  purpose  of  meeting  the 
expense  of  immigration.  Lord  John  Russell,  who,  as 
Premier,  had  made  the  proposition,  stated,  that  laborers 
might  be  brought  from  any  British  possession  in  Africa, 
"provided  there  was  an  officer  on  board  the  vessel  who 
should  take  care  that  there  were  no  transactions  resem- 
bling the  slave-trade,  and  that  the  person  who  emigrates 
to  the  West  Indies  should  go  there  with  his  own  con- 
sent." He  also  said,  that  "liberated  Africans,"  from 
captured  ships,  were  conveyed  direct  to  the  West  Indies, 
instead  of  being  sent  to  Sierra  Leone.2 

In  a  parliamentary  return  for  1849,  it  appeared  that 
there  had  been  64,625  Africans  emancipated  in  the 


1  Revue  des  deux  mondes,  ler  Janvier,  1858,  p.  96. 

2  Annual  Register,  1848,  p.  11]. 


VISITATION   AND    SEARCH.  153 

mixed  courts  at  Sierra  Leone  since  1819;  and  during 
the  preceding  year  in  the  vice-admiralty  court,  at  that 
place,  5,282,  all  of  whom  had  gone  as  virtual  slaves  to 
increase  the  labor  in  the  British  colonies.1 

In  1850,  the  proposition  of  Mr.  Hume,  to  which  we 
have  referred,  and  which  was,  like  the  French  system, 
now  so  much  discussed,  to  buy  slaves  in  Africa,  and  send 
them  as  free  immigrants  or  apprentices  to  the  West  In- 
dies, was  renewed  in  parliament.  The  retrogression 
both  of  the  Creole  and  negro  population,  in  consequence 
of  the  emancipation  act,  was  admitted ;  and  it  was  de- 
clared that  the  latter,  though  they  had,  through  the 
legislation  of  the  mother  country,  gained  an  artificial 
command  of  the  labor  market,  had  fallen  back  far  be- 
low where  they  had  stood  in  the  years  of  slavery.  The 
black  population,  it  was  urged,  was  relapsing  into  bar- 
barism; and  it  was  again  earnestly  contended,  that 
"  the  only  means  of  relief  consisted  in  the  introduction 
of  African  laborers,  the  only  class  suited  to  the  cultiva- 
tion." 2 

General  Cass,  in  his  note  to  Lord  Napier  of  the  10th 
of  April  (now  become,  by  the  reference  to  it  by  the 
government  of  England,  as  fixing  the  law  of  nations,  a 
most  important  historical  document),  alludes  to  a  state- 
ment, "  by  high  authority,  in  the  British  House  of  Lords, 
on  the  16th  of  March  last,  and  not  contradicted,  that  a 
law  had  been  passed  in  the  island  of  Jamaica,  called  a 
vagrant  act,  the  real  object  of  which  was  to  reduce  the 
free  negroes  in  the  island  to  slavery." 

Later  intelligence   from  that  colony  is  given  in  an 


1  Parliamentary  Papers,  1849. 

2  Annual  Register,  1850,  p.  52.] 


154  VISITATION   AND    SEARCH. 

extract  from  the  Colonial  Standard,  a  paper  published 
at  Kingston,  of  the  10th  of  July.  It  will  throw  further 
light  on  the  nature  of  free  labor,  as  understood  in  the 
British  West  Indies  :  — 

"Notwithstanding  the  disallowance  of  the  Immigra- 
tion Act  of  the  last  session,  we  have  still  a  thoroughly 
practicable  immigration  act  on  our  statute-book,  which, 
although  confessedly  less  complete  and  less  effective  in 
regard  to  the  length  of  contract  sanctioned  by  it  in  the  first 
instance,  than  the  act  which  has  been  disallowed,  is  still 
quite  equal  to  the  effectual  enforcement  of  every  con- 
tract that  might  be  concluded  under  it.  Under  these 
circumstances  the  Governor  has  resolved  on  immediately 
calling  in  the  remaining  moiety  of  the  British  guaran- 
teed immigration  loan  of  1852,  and  on  at  once  applying 
the  amount  to  the  importation  of  immigrants  under  the 
provisions  of  the  Island  Act  of  1852,  to  which  effect  was 
given  by  Sir  John  Packington,  while  Colonial  Secretary 
in  that  year.  The  Board,  after  a  short  consultation,  unan- 
imously agreed  to  his  Excellency's  recommendations  as 
set  forth  in  his  minute,  and  authorized  the  appropria- 
tion of  £20,000  for  East  India  immigrants,  and  also  a 
farther  sum  of  £20,000  for  the  introduction  of  Chinese 
laborers  into  this  colony.  The  Board  directed  the  bal- 
ance of  the  £53,000,  applicable  to  immigration  purposes, 
to  be  appropriated  to  the  introduction  of  African  and 
other  laborers. 

"  The  Board  also  requested  the  Governor  to  intimate 
to  the  Secretary  of  State,  that  they  were  willing  to  pay 
£5  for  each  African  immigrant  forwarded  to  this  island, 
as  well  as  one  dollar  per  head  to  the  emigration  agent 
at  the  port  of  embarkation." 

The  parliamentary  papers  show,  that,  between  1847 


VISITATION  AND    SEARCH.  155 

and  1856,  there  had  been  introduced  into  the  West 
Indies  47,060  immigrants  and  liberated  Africans,  and 
into  Mauritius,  97,542,  of  whom  the  greater  part  were 
from  the  East  Indies.  Of  those  conveyed  to  the  other 
colonies,  about  one  half  were  from  the  same  regions. 

These  documents  disclose  the  horrible  sufferings  at- 
tendant upon  the  transportation  of  the  coolies.  An 
official  report,  in  speaking  of  the  mortality  on  board  of 
a  British  transportation  ship,  says,  that  of  500  em- 
barked, only  202  were  landed,  and  of  another,  that  110 
died  by  natural  death  and  suicide.  "What,"  it  adds, 
"if  it  turns  out  that  these  were  cargoes  of  veritable 
slaves,  captured  or  kidnapped  in  the  Bay  of  Bengal  or 
Bay  of  Hong  Kong,  instead  of  the  Bight  of  Benin  or 
the  Mozambique  Channel,  and  conveyed  in  British  ships 
to  the  slave  mart  of  Havana  ?  " 1  Even  under  the  most 
favorable  circumstances  the  mortality  in  British  ships  is 
said  to  be  from  fourteen  to  fifteen  per  cent,  and  though 
in  the  case  of  shipments  to  the  English  colonies,  better 
regulations  may  be  observed,  yet  that  is  confessedly  not 
the  case  as  to  those  that  are  sent  to  Cuba. 

The  Earl  of  Carnarvon,  in  the  debate  of  the  21st  of 
June  last,  said:  "It  was  obvious,  that,  even  if  the  law 
was  not  evaded,  as  was  generally  the  case  with  respect 
to  vessels  clearing  out  for  foreign  ports,  the  government 
had  no  authority  over  them  when  they  reached  their 
destination.  With  regard  to  British  possessions  the 
case  was  very  different.  Between  the  years  1834  and 
1856  no  fewer  than  170,000  coolies  had  been  conveyed 
to  Mauritius;  and  in  1856  no  fewer  than  134,000  re- 
mained. In  the  years  1852-4  the  number  of  Chinese 

1  Parliamentary  Papers,  Vol.  X.  1857. 


156  VISITATION   AND    SEARCH. 

conveyed  on  board  British  ships  to  British  possessions 
was  2,340,  of  whom  there  had  died  on  the  passage  230, 
or  ten  per  cent,  —  certainly  a  very  large  percentage. 
But  in  the  ten  years,  1847-57,  9,600  persons  were  con- 
veyed on  board  twenty-six  British  ships  to  Cuba,  and  of 
these,  1,391  died,  or  nearly  fourteen  and  a  half  per  cent. 
He  was  afraid  that  what  the  Bishop  of  Oxford  had 
stated  with  regard  to  kidnapping  was  quite  true,  and 
that  those  poor  people  were  got  on  board  not  only  by 
kidnapping,  but  by  false  pretences,  by  devices  of  various 
kinds,  and  even  by  force.  There  was  no  reason  to  be- 
lieve that  the  contract  which  it  was  alleged  was  entered 
into  with  these  people  was  kept.  On  the  contraiy,  the 
only  evidence  was  that  they  were  subject  to  a  species 
of  servitude,  which,  under  the  name  of  free  emigration, 
amounted  practically  to  slavery.  It  miyltt  be  said  that  the 
coolie  was  free  ivhen  he  tvas  landed  in  Cuba  ;  but  it  zvas  quite 
unreasonable  to  suppose  tliat  a  man  in  a  strange  country,  cut 
off  from  intercourse  ivith  his  own  countrymen,  could  under  such 
circumstances  preserve  his  freedom." 

Lord  Carnarvon  also  stated,  on  the  authority  of  Sir 
John  Bowring,  that  the  u  ( free  immigrants '  who  are  ob- 
tained in  China  for  transmission  to  Cuba  are  for  the 
most  part  either  drugged  with  opium  until  they  are 
insensible,  and  then  taken  on  board  ship,  or  violently 
seized  and  carried  off,  or,  in  many  instances,  openly  pur- 
chased in  China.  When  they  are  thus  got  on  board, 
they  are  forced  to  sign  what  is  called  an  indenture  of 
apprenticeship,  by  which  they  bind  themselves  to  work 
for  eight  years  for  stipulated  daily  wages  (not  exceeding 
thirty  cents  a  day),  and  while  on  the  passage  to  some 
colony  of  which  they  know  nothing,  —  not  even  the 
name,  —  they  are  obliged  to  suffer  privations  and  mis- 


VISITATION   AND    SEARCH.  157 

ery  of  the  most  revolting  nature."  A  case  is  cited  where 
a  number  of  these  wretched  coolies  were  huddled  on 
board  a  ship,  and  fell  sick  before  they  put  to  sea ;  and 
it  was  considered  too  expensive  to  give  them  medical 
aid,  so  they  were  landed  on  the  beach  and  abandoned, 
where  many  perished  from  starvation,  and  many  others 
were  devoured  by  wild  dogs  and  pigs.  From  the  3d  of 
June,  1847,  to  the  1st  of  September,  1856,  the  total 
number  of  coolies  imported  into  Cuba,  wras  11,586.  It 
is  calculated  that  quite  an  equal  number  perished  on 
the  passage.  In  one  instance,  out  of  a  cargo  of  two 
hundred  coolies,  132  died  during  a  passage  of  149  days. 
In  another,  122  died  out  of  175  during  a  passage  of  171 
clays. 

The  English  documents  furnish  us  with  evidence  that 
the  Chinese  and  coolie  immigration  is  not,  even  under 
the  most  favorable  circumstances,  like  our  African  pop- 
ulation, a  supply  of  labor  which,  when  once  adequately 
furnished,  will  sustain  itself.  The  Governor  of  Guiana, 
in  writing  to  Earl  Grey,  October  31,  1851,  says:  "The 
only  drawback  to  Chinese  immigration  appears  to  be 
that  which  has  so  materially  impeded  the  beneficial  de- 
velopment of  the  experiment  of  introducing  the  natives 
of  India  into  this  colony,  —  the  difficulty  of  procuring 
female  emigrants.  There  is  no  class  of  persons  in  the 
colony  for  them,  with  whom  to  form  matrimonial  alli- 
ances." Again,  on  the  24th  of  July,  1853,  he  says  that 
the  captain  of  an  immigrant  ship  told  him  that  "he 
hoped  hereafter  to  procure,  at  least,  as  large  a  propor- 
tion of  women  as  is  now  done  in  the  case  of  coolies, 
which,  though  insufficient  to  place  them  on  the  footing 
of  an  increasing  population,  would  be  ample  to  obviate 
objections  on  moral  grounds." 

14 


158  VISITATION   AND    SEARCH. 

The  supply  therefore  can  only  be  kept  up  by  contin- 
ual importations.  And  when  it  is  considered  that  in 
the  West  Indies,  where,  after  the  slave-trade  became 
unlawful,  only  young  men  were  imported,  and  which  is 
the  system  that  now  prevails  as  to  Cuba,  it  was  deemed 
profitable  to  "  use  up "  the  negro  in  eight  years,  what 
prospect  can  the  apprentice  or  immigrant,  who  enlists 
for  that  time,  have  of  surviving  his  servitude,  or  if  he 
should,  through  a  superior  constitution,  be  an  exception, 
what  means  can  he  possess  of  vindicating  his  freedom  ? 
Should  he  even  be  emancipated,  what  is  to  become  of 
the  remainder  of  his  miserable  existence  ? 

Till  1846  the  West  Indies  had  the  advantage  of  hidi 

*_j  *^> 

protective  duties  against  all  slave-grown  sugar,  which 
were  defended  on  grounds  connected  with  their  special 
condition,  even  by  the  most  earnest  advocates  of  free- 
trade.  Such,  however,  had  been  the  diminution  of 
labor,  that,  as  early  as  1850,  Mr.  Hume  computed  the 
loss  which  had  accrued  from  the  forced  emancipation 
at  £100,000,000  or  $500,000,000. 

The  necessities  of  the  colonies  produced  no  relaxa- 
tion of  Lord  Brougham's  zeal  as  to  the  African  race. 
In  moving,  in  July,  1857,  an  address  to  the  Queen  to 
put  down  the  slave-trade,  he  said,  that  to  import  a  lim- 
ited number  of  Africans  must  lead  to  a  revival  of  the 
trade ;  that  free  immigration  and  apprenticeship  were 
nonsense ;  and  that  the  advocates  of  those  systems  used 
precisely  the  same  arguments  as  had  been  employed 
against  the  abolition  of  the  trade.  In  Jamaica,  the  cry 
was  for  immigration.  The  wages  there  were  from  nine- 
pence  to  one  shilling  a  da}7.  It  is  idle  to  suppose  that  a 
poor  African  will  find  his  way  back  to  freedom  and  to 
his  country,  after  ten  years'  service  ;  the  encouragement 


VISITATION   AND    SEARCH.  159 

of  the  emigration  of  negroes  from  the  coast  of  Africa 
to  the  West  Indies,  by  purchase  or  the  liberation  of 
slaves,  has  a  direct  tendency  to  promote  the  internal 
slave-trade  of  Africa.1 

But,  however  earnestly  Lord  Brougham  has  continued 
to  sustain  the  cause  of  the  negroes,  his  views,  with 
regard  to  the  Asiatics,  seem  to  have  undergone  a  great 
change,  since  his  denunciation  of  that  new  species  of 
slave-trade  twenty  years  ago.  While,  on  every  occa- 
sion, vehemently  assailing  the  analogous  proceedings  of 
France  for  procuring  African  emigrants,  his  remarks,  on 
the  25th  of  June  last,  were  no  longer  directed  against  the 
traffic  in  coolies,  but  he  desired  to  save  the  blacks  by  ob- 
taining a  monopoly  of  their  labor  for  the  British  colonies. 
He  objected  to  the  exportation  of  coolies,  by  fraud, 
force,  and  every  species  of  misconduct,  to  other  coun- 
tries, where  there  was  no  possibility  of  watching  over 
their  shipment,  or  the  treatment  they  received  in  these 
foreign  settlements.  "  The  true  remedy  lay,"  he  said, 
"  in  a  narrow  compass,  and  could  be  readily  carried  into 
effect.  It  was  absolutely  to  prohibit  the  carrying  of  the 
coolies  either  from  India  or  the  coast  of  China  to  foreign 
settlements." 

Even  the  Bishop  of  Oxford,  on  the  same  evening, 
denied  indignantly  that  he  was  opposed  to  the  impor- 
tation of  coolies  into  the  English  possessions.  He  asked, 
"  whether  the  government  would  be  willing  to  take 
upon  themselves  the  responsibility  of  devising  means 
by  which  the  immediate  evils  of  kidnapping  might  not 
only  be  checked,  but  also  that  the  taint  and  suspicion  of 
the  slave-trade  might  not  be  brought  on  the  lawful,  hon- 

1  Hansard's  Parl.  Deb.  x.  s.,  Vol.  CXLVI.  p.  1661. 


160  VISITATION  AND    SEARCH. 

orable,  and  most  desirable  transmission  of  free  coolies, 
who  were  willing  to  go,  and  who  knew  where  they  were 
going." 1 

A  recollection  of  the  horrible  events,  attendant  upon 
a  premature  emancipation  in  Saint  Domingo,  might  well 
have  induced  France  to  hesitate  before  entering  on  a 
repetition  of  a  similar  project  for  her  remaining  colo- 
nies. During  the  reign  of  Louis  Phillippe,  though 
strenuous  efforts,  which  most  sensibly  affected  the  value 
of  colonial  property,  were  made  to  follow  the  example 
of  England,  they  were  always  resisted  by  the  govern- 
ment. The  liberation  of  the  negroes  was  one  of  the 
results  of  the  revolution  of  February,  1848.  It  was 
decreed  on  the  27th  of  April,  but  it  was  not  till  the 
30th  of  April  of  the  ensuing  year  that  an  indemnity 
to  the  masters  of  126,000,000  francs  was  voted.2 

The  immediate  consequence  of  this  legislation  was,  the 
falling  off  of  the  products  in  Gaudeloupe  and  Martin- 
ique, to  the  extent  of  one  half  as  compared  with  1847, 
and  which  diminution  was  greater  in  1849  and  1850  ; 
while  in  Guiana  and  the  Isle  of  Bourbon,  or  Reunion, 
the  results  were  still  more  disastrous.  "  Now  the  ques- 
tion is,"  says  an  advocate  of  abolition,  "how  to  find 
abroad,  and  introduce  to  the  soil  of  the  colonies,  while 
respecting  freedom,  the  amount  of  labor  which  emanci- 
pation has  lost  for  them."  Cuba  had  anticipated  the 
French  in  the  Chinese  trade,  though  in  1856  a  shipment 
was  made  from  Shanghai  to  the  French  West  Indies. 

1  London  Times,  June  26,  1858. 

*  The  indemnity  gave  an  average  value  in  all  the  colonies,  taken  together, 
of  530  francs  for  each  slave,  and  which  differed,  according  to  locality,  from  705 
francs  38  cents,  to  430  francs  47  cents. — Revue  des  deux  mondes,  ler  Janv. 
1858,  p.  87. 


VISITATION   AND    SEARCH.  161 

Without  government  aid,  there  were,  in  March,  1857, 
35,000  coolies  in  the  Isle  of  Bourbon,  who  were  as 
openly  bought  and  sold  as  the  African  slaves  formerly 
were  ;  and  a  contract  was  made  in  1853  for  the  intro- 
duction of  15,000  coolies  into  the  West  Indies,  though, 
owing  to  the  interference  of  the  English  government,  it 
had  not  its  full  operation.  The  stipulated  wages  of  a 
coolie  is  12f.  50c.  a  month,  besides  food  and  clothing ; 
and  from  800  to  1,000  francs  is  paid  for  him  to  the  im- 
porter.1 

Bourbon  has  added  to  her  East  India  laborers  some 
Africans,  recruited  from  the  east  side  of  that  continent ; 
while  the  government  is  carrying  out  a  contract  for  the 
introduction  of  several  thousand  blacks  into  the  West 
Indies  and  Guiana. 

France  has  been  induced,  it  is  said,  to  adopt  more 
extensive  arrangements  for  the  immigration  of  negroes, 
in  consequence  of  the  difficulties  interposed  to  her  ob- 
taining a  supply  of  coolies,  whom  she  would  have  pre- 
ferred. Although  shipped  from  the  French  factories, 
they  had  been  recruited  within  the  British  territory. 
She  has,  since  1852,  declared  to  England,  that  "  nothing, 
in  the  text  of  the  treaties  for  the  suppression  of  the  slave- 
trade,  prevented  her  taking  the  negroes  that  she  might 
contract  for  on  the  coast  of  Africa,  though  they  were . 
ransomed,  in  order  to  be  conveyed  to  the  free  and  civil- 
ized soil  of  the  French  colonies ;  that  if  France  had  of 
late  years  abstained  from  resorting  to  this  mode  of  re- 
cruitment, it  was  because  she  knew  that  it  was  repug- 
nant to  a  respectable  portion  of  the  public  opinion  of 
England  ;  but  that,  being  under  an  obligation  to  secure 

1  Revue  ties  deux  mondes,  lej  Janv.,  1858,  p.  87. 

14* 


162  VISITATION  AND   SEARCH. 

the  success  of  free  labor  in  her  colonies,  she  would  be 
obliged  to  renounce  this  friendly  deference,  if  her  ally 
continued  to  oppose  obstacles  to  the  free  emigration  of 
the  East  Indians." 

In  a  debate  in  the  House  of  Lords  on  this  subject,  on 
the  6th  of  July,  1857,  Lord  Malmesbury  said  that  they 
must  not  consider  getting  laborers  from  the  coast  of 
Africa  necessarily  a  revival  of  the  slave-trade.  "  On  the 
score  both  of  policy  and  humanity,  the  question  was  wor- 
thy of  the  consideration  of  those  who  wished  to  take  a 
broad  and  statesmanlike  view  of  the  subject.  On  the 
other  side  of  the  Atlantic,  there  were  many  millions  of 
acres  that  could  not  be  cultivated  by  white  men ;  and 
if  they  were  not  cultivated  by  blacks,  they  must  remain 
sterile  ;  while  millions  of  negroes,  willing  to  labor,  were 
confined  to  the  coasts  of  Africa." 

Lord  Clarendon  said  that  the  French  government  had 
determined,  in  1853,  to  purchase  slaves  in  Africa,  eman- 
cipate them  immediately,  and  introduce  them  into  the 
colonies.  They  would,  they  stated,  make  the  experi- 
ment of  free  laborers.1  On  a  subsequent  day,  July  the 
10th,  in  the  Commons,  Lord  Palmerston  said  that  "  an  at- 
tempt had  been  made  to  obtain  free  emigrants  from  the 
west  coast  of  Africa  for  our  West  Indies.  The  attempt 
had  failed.  The  negroes  were  not  disposed  to  emigrate, 
and  go  across  the  sea ;  and  there  is,  therefore,  a  great 
probability  that  the  French  government  will  be  equally 
unsuccessful  in  obtaining  really  free  emigrants;  and 
that  if  the  contract  is  carried  into  execution,  it  will  be 
productive  of  a  revival  of  all  the  evils  of  the  slave- 
trade."  2 

1  Hansard's  Parl.  Deb.  N.S.,  Vol.  CXLVI.  p.  959.  •  Ibid.  1286. 


VISITATION   AND   SEARCH.  163 

To  a  deputation  that  came  to  Lord  Clarendon  in  No- 
vember, 1857,  to  complain  of  the  French  proceeding,  he 
declared  that  it  was  an  unmitigated  and  undisguised 
slave-trade.  This  statement  he  also  repeated  the  ensu- 
ing month  in  parliament. 

The  announcement,  made  by  Count  TValewski  to  our 
minister  in  Paris,  that  "  the  British  government  would 
not  object  to  the  French  scheme  while  the  wants  of  the 
British  colonies  were  being  supplied  by  the  coolie 
trade," l  produced  no  little  sensation  when  repeated  in 
parliament.  The  Emperor  Napoleon  is,  however,  not 
likely  to  recede  from  a  measure,  which  is  deemed  essential 
even  by  those  who  most  favored  emancipation,  for  the 
restoration  of  the  colonies  to  the  prosperity  which  they 
enjoyed  before  1848.  Strong  language  has  been  used 
against  it  by  the  present  English  ministry,  particularly 
in  reference  to  a  recent  occurrence  calculated  to  place 
the  traffic  in  no  very  favorable  light.  Mr.  Fitzgerald 
had,  some  time  since,  announced  that  a  commission  was 
to  be  appointed  to  treat  with  the  French  government  on 
the  subject,  but,  on  a  late  occasion,  he  implied  doubts 
as  to  that  proposition  being  carried  out.2  He  said,  how- 
ever, that  he  "  believed  that  there  was  no  power  on  the 
face  of  the  globe  that  would  make  greater  sacrifices  to 
put  down  the  slave-trade  than  the  government  of  the 
Emperor  of  the  French ;  but  what  was  represented  to  the 
Imperial  government  was,  that,  although  the  free  immi- 
grants were  most  carefully  attended  to  after  they  ar- 
rived in  the  French  colonies,  yet  the  system  of  buying 
African  slaves  on  the  African  coast  for  the  purpose  of 


1  35  Cong.  1  Sess.  Senate,  Ex.  Doc.  No.  49,  p.  56. 
4  London  Times,  July  IS. 


164  VISITATION   AND    SEARCH. 

apprenticing  them  for  six  years  in  a  French  colony, 
must  necessarily  lead  to  a  continuance  of  the  slave- 
trade." 

Of  the  practical  effects  of  the  French  proceedings,  an 
experienced  missionary  in  Africa  thus  speaks :  "  I  sup- 
pose that  for  every  slave  landed  in  the  American  mar- 
kets, about  three  persons  are  cut  off  in  the  wars  and  the 
famines  which  follow,  and  during  the  middle  passage 
from  coast  to  coast.  The  present  system  of  apprentice- 
ship affords  a  safer  passage  to  America,  but  the  appren- 
tices are  collected  by  the  same  system  of  destructive 
wars  which  have  already  depopulated  some  of  the  finest 
districts  of  Africa.  No  sooner  was  it  known  that  ap- 
prentices would  be  bought,  than  the  chiefs  in  different 
places  began  to  make  war  on  their  weaker  neighbors. 
My  last  advices  from  Africa  told  of  famishing  sieges 
and  bloody  battles  to  supply  the  French  ships  with 
emigrants." * 

The  case  of  The  Regina  Cceli  has  been  specially 
noticed.  She  was  a  French  emigrant  ship  which  had  on 
board  two  hundred  and  seventy  "  free  emigrants,"  who,  in 
April  last,  in  the  absence  of  the  captain,  took  possession 
of  the  vessel  and  killed  all  the  crew  that  were  on  board. 
She  was  subsequently  surrendered  to  an  English  vessel 
and  brought  into  Monrovia,  when  possession  was  regained 
by  the  French,  the  only  question  between  the  English 
and  French  being  that  of  salvage.  It  was  stated  that 
there  were  manacles  on  board,  and  every  thing  to  indi- 
cate the  arrangements  of  an  ordinary  slaver. 

Unfortunately  for  the  colonization  cause,  by  the  French 
official  accounts  the  government  of  Liberia  would  appear 

1  American  Colonization  Report,  p.  39. 


VISITATION   AND    SEARCH.  165 

to  be  implicated  in  the  transaction.  It  is  said  that  not 
only  had  the  President  given  it  his  approval,  receiving  a 
considerable  sum  ($1,565)  under  the  name  of  passport 
money,  for  four  hundred  free  laborers,  with  whom  it 
was  agreed  the  vessel  should  be  supplied  in  forty  days, 
but  the  enlistment  had  taken  place  under  the  superin- 
tendence of  the  Liberian  authorities,  as  well  as  of  the 
agent  of  the  French  government.  The  amount  paid 
for  these  "free  immigrants"  was  £2  10s.  a  head,  as  an- 
nounced in  parliament.  It  is  conceded  that  they  came 
from  the  territories  of  Liberia,  but  it  is  not  intimated 
that  they  constituted  any  portion  of  the  American  emi- 
grant population.  They  are  said  to  have  belonged  to 
the  Vey  nation,  who  are  within  the  jurisdiction  of  the 
republic,  and  it  is  understood  that  the  purchase-money 
was  received  by  their  chiefs.  These  native  tribes  or 
nations  enjoy  the  protection  of  the  Liberian  govern- 
ment, and  are  considered  as  in  preparation  for  citizen- 
ship.1 

The  animadversions  in  parliament  on  the  African 
emigation  have  induced  retorts  on  the  part  of  the  French 
press.  The  Constitutionnel  says  "that  it  is  demonstrable 
that  France,  far  from  engaging  in  the  slave-trade,  which 
it  abhors  as  much  as  any  other  Christian  and  civilized 
nation,  takes  the  slaves  from  the  coast  of  Africa  to  make 
free  laborers  of  them,  while  the  English,  on  the  coast  of 


1  American  Colonization  Report,  p.  54.  From  the  statement  of  officers  of 
the  Colonization  Society,  it  would  seem  that  the  government  of  Liberia  is 
powerless  to  prevent  foreigners  from  prosecuting  their  emigration  schemes ; 
though  they  had  adopted  measures  requiring  the  emigrants  to  be  brought  to 
Monrovia  to  be  examined  as  to  their  freewill  in  leaving,  and  passports  were 
to  be  given  to  such  as  desired  to  emigrate.  This  may  explain  the  payment 
under  that  head  which  is  referred  to  in  the  text. 


166  VISITATION  AND    SEARCH. 

China,  seize  by  violence  or  fraud  freemen  to  make  slaves 
of  them. 

"When  an  English  cruiser  captures  a  slaver,  where 
does  it  take  the  cargo  ?  Does  it  return  it  to  the  coast 
of  Africa,  and  restore  the  negroes  to  their  country  and 
to  liberty,  or  does  it  prefer  to  transport  them  to  an 
English  colony  without  their .  consent  ?  These  unfortu- 
nate beings,  after  being  taken  by  force,  or  purchased  on 
the  coast  of  Africa,  are  sent  to  Demerara,  Jamaica,  £c., 
where  they  are  obliged  to  contract  an  engagement  to 
the  queen  for  sixteen  years,  and  are  then  distributed 
among  the  planters. 

"  We  have  received  from  London  a  calculation  show- 
ing that  the  profits  greatly  exceed  the  expense  of  the 
fleets  for  the  suppression  of  the  slave-trade  on  the  coasts 
of  Africa  and  the  West  Indies.  The  prizes  annually 
made  by  the  cruisers  exceed  forty  slavers,  and,  supposing 
only  eighteen  to  be  taken  with  human  cargoes,  the 
average  being  three  hundred  slaves  for  each  vessel, 
England  would  have  five  thousand  four  hundred  labor- 
ers, which  she  introduces  into  her  colonies  without  ask- 
ing their  consent.  Adding  to  these  human  cargoes  the 
value  of  the  merchandise  and  of  the  vessels  and  their 
outfits,  as  well  as  the  money  and  other  property  belong- 
ing to  the  captain  and  crew,  and  we  shall  be  brought  to 
the  conviction  that  the  English  fleet  for  the  suppression 
of  the  slave-trade  is  not  a  ruinous  work  of  philanthropy, 
but  a  very  good  business." 

It  may  be  recollected,  as  explanatory  of  the  preceding 
article,  that,  of  late  years,  by  means  of  the  legislation  of 
1839,  the  mixed  commissions  have  had  little  or  nothing 
to  do,  and  that  the  condemnations  have  been  in  the  vice- 
admiralty  courts,  and  that  thus  the  whole  business  of 


VISITATION   AND    SEARCH.  167 

suppressing  the  slave-trade  has  been  under  the  control 
of  England,  and  all  the  captured  slaves  accrue  to  her 
benefit. 

It  is  obvious,  that,  if  we  are  to  continue  to  make  large 
annual  expenditures,  not  for  the  purpose  of  executing 
our  own  laws  and  carrying  out  our  own  policy,  but  in 
the  exercise  of  a  general  supervision  over  the  morals  of 
the  world,  Africa  has  no  exclusive  claims  on  our  notice. 
To  say  nothing  of  the  equivocal  condition  as  to  per- 
sonal slavery  among  the  millions  subject  to  the  sway  of 
England  in  the  East  Indies,  and  which  it  is  believed  has 
been  little  practically  affected  by  the  nominal  affran- 
chisement of  1843,  and  the  unheard  of  cruelties  now 
being  executed  on  others  there,  whose  crime  is  a  vindi- 
cation of  national  independence,  why  should  the  slave- 
trade  of  Turkey  be  overlooked,  especially  the  traffic  in 
the  Christian  population  of  Georgia  and  Circassia,  which 
is  there  superadded  to  that  of  negroes  from  Africa. 
England  has  more  than  once  gone  to  war  to  maintain 
the  integrity  of  the  Ottoman  Porte,  and  at  this  moment 
her  efforts  are  being  directed,  by  preventing  their  union, 
to  retain  the  Danubian  provinces,  whose  population  is 
wholly  Christian,  permanently  under  the  mzerainete  of 
the  Sultan.  The  Bishop  of  Oxford,  during  the  Crimean 
war,  called  the  attention  of  the  government  to  the 
fact,  that  the  trade  in  Circassian  slaves  for  the  harems 
of  Constantinople,  which  had  been  suppressed  by  Rus- 
sia, had  been  reopened  on  the  withdrawal  of  her  fleet.1 
We  do  not  perceive  that  when  the  Sultan  was,  by  the 
congress  of  Paris,  formally  admitted  to  the  advantages 
of  the  public  law  of  Europe,  he  was  even  required  to 

1  Hansard's  Parliamentary  Debates,  x.  s.,  Vol.  CXXXV.  p.  122. 


168  VISITATION   AND    SEARCH. 

subscribe  to  the  declarations  of  preceding  congresses  in 
reference  to  the  slave-trade,  or  to  conform  his  domestic 
arrangements  to  those  of  Christendom ;  and  it  is,  at  all 
events,  admitted  that  England  acquiesces  in  his  refusal 
to  enter  into  any  treaty  for  the  abolition  of  the  traffic 
in  either  of  its  branches.1 

Conceiving  that  the  relation  in  which  England  and 
France  stand,  with  regard  to  a  supply  of  labor  for  their 
colonies  raising  tropical  products,  is  an  essential  mat- 
ter connected  with  every  project  for  the  suppression  of 
the  slave-trade,  on  grounds  of  humanity,  reference  has 
been  made,  from  the  imperfect  sources  of  information 
wrhich  were  attainable,  to  such  facts  as  may  enable  us 
to  judge  of  the  tendency  of  their  present  policy.  Was 
it  free  labor  as  understood  among  us  that  wTas  desired, 
the  price  of  which  is  regulated  by  unfettered  competi- 
tion, it  is  obvious  that  there  need  have  been  no  want  of 
a  supply  from  voluntary  immigration.  Since  the  dis- 
bandment  of  the  West  Indian  laborers,  Great  Britain,  es- 
pecially has  thought  it  necessary,  on  account  of  the 
excess  of  her  own  population,  to  encourage  colonization 
to  her  North  American  and  Australian  possessions ;  and 
no  inconsiderable  portion  of  the  labor  of  the  States  of 
this  Union,  where  negro  slavery  does  not  exist,  is  per- 
formed by  natives  of  the  British  isles,  and  that  is  the 
case  also  in  the  slave  States  as  to  all  but  pre- 
dial labor.  Indeed,  at  the  same  time  that  parliament 
was  guaranteeing  colonial  loans  for  the  introduction  of 
African  and  Asiatic  immigrants,  it  was  voting  money  to 
facilitate  the  colonization  of  its  redundant  European 
population. 

1  Parliamentary  Papers,  1856,  Vol.  LXII.  p.  445. 


VISITATION   AND    SEARCH.  169 

That  it  is  not  free  labor  that  is  wanted,  where  the 
party  can  engage  for  as  long  or  as  short  a  time  as  he 
pleases,  with  the  certainty  of  being  able  to  enforce  his 
contract,  is  therefore  very  clear.  Between  slavery,  as 
it  is  understood  by  us,  and  the  condition  of  the  coolies 
and  African  immigrants  in  the  West  Indies,  it  is  pre- 
sumed that  enough  has  incidentally  appeared  to  show 
that  there  is  no  distinction  which  can  operate  to  the 
advantage  of  the  latter.  Indeed,  the  very  temporary 
nature  of  the  engagement,  if  that  is  not  altogether 
illusory,  would  be  unfavorable  to  the  nominal  freeman. 
The  life  of  the  slave  is  valuable  to  his  master,  and,  it  is 
fair  to  presume,  is  therefore  exposed  as  little  as  possible. 
All  those  employments  that  are  most  deleterious  to  hit- 
man life  are  assigned  to  the  laborers,  from  whose  death 
the  least  loss  would  accrue.  Nor  can  the  experience  of 
others  be  without  benefit  in  guarding  us  against  a  repe- 
tition of  their  errors.  To  say  nothing  of  patriotic  con- 
siderations, or  of  fraternal  regard  for  the  whites;  no 
friend  of  the  negro  race,  who  is  made  to  understand  that 
the  injudicious  emancipation  in  the  West  Indies  is  now 
the  greatest  obstacle  to  the  final  extinction  of  the  slave- 
trade,  can  desire  such  a  measure,  however  in  accord- 
ance with  his  abstract  opinions,  to  be  applied  to  this 
country.  The  immediate  effect  of  the  abolition  of  sla- 
very here  would  be  the  disorganization  of  the  industrial 
system  of  the  great  producing  States,  attended  with  ruin 
to  both  existing  races,  and  the  derangement  of  the  entire 
business  of  the  whole  civilized  world,  to  be  inevitably 
followed  by  a  repetition  of  the  horrors  of  the  middle 
passage,  and  the  other  evils  consequent  upon  a  renewed 
importation  of  tropical  laborers,  —  in  other  words,  by 
the  revival  of  the  slave-trade  in  its  worst  forms. 

15 


170  VISITATION   AND    SEARCH. 

The  colonies  neither  of  England  or  France  exclusively 
supplied  any  commodity  essential  to  the  comfort  and 
convenience  of  civilized  man.  The  diminished  produc- 
tion of  sugar  was  compensated  for  by  its  increased  cul- 
ture, in  countries  not  bold  enough  rashly  to  attempt 
experiments,  that  went  to  the  subversion  of  the  whole 
social  fabric.  But,  for  cotton,  our  Southern  States  pos- 
sess a  virtual  monopoly.  The  quantity  which  they 
raise,  varying  from  three  to  three  millions  and  a  half  of 
bales,  affords,  with  other  slave  products,  an  exportable 
annual  value  of  from  one  hundred  and  fifty  to  two  hun- 
dred millions  of  dollars.  Our  cotton  furnishes  the  mate- 
rial for  the  most  important  manufactures  of  Europe  and 
of  our  Northern  States.  In  1852,  more  than  one  half  of 
the  entire  crop  wras  exported  to  England,  where  it  con- 
stituted three  quarters  of  the  whole  consumption.1  Not- 
withstanding the  avowals  in  Lord  Aberdeen's  despatch 
of  a  general  anti-slavery  crusade,  even  during  the  most 
fanatical  discussions  in  parliament,  and  when  it  was  pro- 
posed to  modify  the  general  policy  of  free  trade,  by 
establishing  differential  duties  for  sugar,  it  was  admitted 
that  the  exclusion  could  not  be  applied  to  slave-grown 
cotton,  as  the  British  manufacturers  were  dependent  on 
the  United  States  for  that  raw  material.2 

Powerful  as  have  been  the  motives  for  England  to 
keep  up  a  system  which,  through  her  treaties  with  all 
the  minor  maritime  States,  enabled  her  to  exercise  a  gen- 
eral police  of  the  ocean,  as  well  as  to  supply  her  plan- 
tations with  captured  slaves,  there  has  been  far  from  a 
unanimous  sentiment  in  the  British  legislature  for  con- 
tinuing an  expediture  deemed  useless,  for  its  professed 

1  Compendium  of  U.  S.  Census,  p.  191. 

2  Annual  Register,  1850,  p.  521. 


VISITATION   AND    SEARCH.  171 

objects,  by  those  whose  experience  had  afforded  them  the 
best  means  of  judging  of  its  practical  effects.  In  the 
sessions  of  1848-49,  the  committees  of  the  Lords  and 
Commons  came  to  opposite  conclusions  on  the  subject ; 
and  in  1850  a  motion  was  made  by  Mr.  Hutt  for  "an 
address  to  the  crown,  to  direct  that  negotiations  be  forth- 
with entered  into  for  the  purpose  of  releasing  [the] 
country  from  all  treaty  engagements  with  foreign  States, 
for  maintaining  armed  vessels  on  the  coast  of  Africa,  to 
suppress  the  traffic  in  slaves."  This  measure,  there  was 
reason  to  suppose,  might  have  prevailed,  had  it  not  been 
for  the  determined  opposition  of  the  ministry,  of  which 
Lord  John  Russell  was  the  Premier,  and  Lord  Palmerston 
the  Foreign  Secretary,  and  who  staked  their  political  ex- 
istence on  the  continuance  of  the  policy.  With  all 
their  efforts  to  defeat  it,  the  measure  obtained  154  votes 
against  232.  In  the  course  of  this  discussion,  Mr.  Glad- 
stone, who  had  been  Secretary  for  the  Colonies,  and  was 
subsequently  Chancellor  of  the  Exchequer,  said :  "  Al- 
though the  burden  cast  upon  the  people  of  England  by 
this  charge  was  not  limited  to  £700,000,  that  was  not 
his  main  motive ;  he  wanted  to  grapple  with  the  ques- 
tion on  the  ground  of  humanity  and  philanthropy ;  and 
he  had  come  to  the  conclusion,  from  evidence,  of  which 
he  gave  the  details,  that  the  present  system  of  repres- 
sion did  not  diminish,  but,  on  the  contrary,  had  a  ten- 
dency to  increase,  the  sum  of  human  wretchedness." l 

Nor  do  we  consider  that  the  little  success  which  at- 
tended Mr.  Hutt's  motion,  on  the  12th  of  July,  already 
noticed  in  another  connection,  for  the  discontinuance  of 
the  visitation  and  search  of  foreign  vessels,  affecting  as 

1  Annual  Register,  1850,  p.  931. 


172  VISITATION   AND    SEARCH. 

it  did  the  relations  of  England  with  foreign  powers,  indi- 
cated what  the  sense  of  the  House  might  be  respecting 
it,  considered  as  a  domestic  question.  Indeed,  Mr.  Card- 
well  observed,  that  it  was  not  a  motion  to  withdraw  the 
African  squadron,  but  to  pass  a  resolution,  and  so  fetter 
the  hands  of  government ;  while  the  Times  has  given 
pretty  unequivocal  indications  that  public  opinion  was 
becoming  adverse  to  a  further  continuance  of  the  policy 
of  forcible  coercion. 

The  facts  elicited  in  the  last  debate  are  not  undeserv- 
ing of  notice,  at  a  time  when  our  own  course,  in  refer- 
ence to  the  suppression  of  the  slave-trade,  cannot  fail  to 
undergo  examination. 

The  mover  contended,  that  the  experience  of  forty 
years  had  proved  that  an  armed  force  could  not  put 
down  the  slave-trade  ;  that,  on  the  contrary,  it  extended 
and  aggravated  the  evil ;  that  the  work  was  fatal  to  the 
gallant  men  engaged  in  the  suppression  service ;  and 
that  England  ran  the  risk  of  coming  into  collision  with 
powerful  States,  thereby  compromising  the  peace  of  the 
world ;  while  all  that  could  be  said  in  favor  of  the  pres- 
ent system  was,  that  it  had,  in  some  inappreciable  de- 
gree, checked  the  traffic.  The  slave-trade  with  Cuba, 
the  parliamentary  papers  showed,  was  carried  on  with 
increased  vigor,  and  almost  with  impunity,  nor  could 
any  diminution  be  expected,  without  the  concurrence 
of  the  local  government.  It  would  be,  as  it  always  had 
been,  regulated  by  the  principle  of  supply  and  demand. 
It  was  remarked  by  Mr.  Burke,  in  his  celebrated  letter 
to  Mr.  Pitt,  that  the  slave-trade  could  only  be  put  down 
in  the  country  of  importation.  He  adduced  the  testi- 
mony of  those  connected  with  the  Department  of  the 
Foreign  Office  charged  with  this  subject,  as  well  as  of 


VISITATION  AND   SEARCH.  173 

naval  commanders,  and  of  the  Judge  of  the  High  Court 
of  Admiralty,  "  that  the  squadron  produced  on  the 
slave-trade  little  or  no  effect."  That  enlightened  advo- 
cate of  its  abolition,  Sir  T.  F.  Buxton,  had  expressed 
his  conviction  before  his  death,  that  the  slave-trade 
never  will  be  put  an  end  to  by  the  course  hitherto 
pursued.  The  Duke  of  Wellington  had,  as  early  as  the 
congress  of  Verona  in  1822,  declared  that  the  armed 
suppression  system  was  a  failure,  and  that  the  very  at- 
tempt at  suppression  tended  to  the  augmentation  of  the 
evil.  The  numbers  put  on  board  in  each  venture  were 
so  disproportionate  to  the  capacity  of  the  vessel,  the 
mortality  was  frightful  to  a  degree  unknown  since  the 
attention  of  mankind  was  first  called  to  the  horrors  of 
this  traffic.  The  British  squadron  had  not  suppressed 
the  trade,  but  they  had  increased  its  evils.  If  the  coast 
was  blockaded,  slaves  were  kept  in  barracoons,  chained 
together  for  weeks  and  months,  dying  of  disease  and 
privation,  waiting  an  opportunity  for  embarkation. 
They  were  so  packed  on  board  ship  that  they  were  un- 
able to  change  their  position.  The  proportion  that  died 
during  the  passage  was  from  twenty-five  to  thirty-three 
per  cent. 

In  the  remarks  of  the  opponents  of  the  resolution, 
great  stress  was  laid  on  the  squadron  as  operating  on 
the  fears  of  Brazil,  and  as  a  means  of  protecting  British 
commerce  in  Africa,  particularly  in  furnishing  cotton,  to 
compete  with  that  from  the  United  States ;  while  even 
the  introduction  of  Indians  from  Yucatan  to  Cuba  was 
adduced  by  the  First  Lord  of  the  Admiralty  as  a  proof 
of  success  in  arresting  the  slave-trade.  On  the  other 
hand,  it  was  confidently  asserted,  that,  at  the  present 
moment,  those  who  desired  to  import  slaves  from  Africa 

15* 


174  VISITATION   AND    SEARCH. 

to  Cuba  could  get  as  many  as  they  wanted ;  while,  in 
order  to  evade  the  British  squadron,  a  larger  number 
were  embarked,  and  the  miseries  of  the  trade  greatly 
extended. 

Lord  Palmerston  took  the  occasion  to  reiterate  his 
objections  to  the  repeal  of  the  statute  against  Brazil. 

Lord  C.  Paget,  who  had  commanded  on  the  African 
coast,  gave  a  decided  opinion  against  the  efficiency  of 
any  squadron  to  arrest  the  trade.  He  said  that  nothing 
could  exceed  the  aggravation  of  suffering,  of  which  it 
was  the  cause,  to  the  miserable  beings.  He  once  cap- 
tured a  vessel  having  480  blacks  on  board,  after  a  chase 
of  seventeen  hours,  during  which  they  were  not  allowed 
to  move,  and  were  kept  without  food  and  water.  The 
proceedings  of  the  British  occasioned  untold  misery  to 
the  Africans,  while  they  were  utterly  destructive  of  the 
health  of  their  own  officers  and  men. 

Enough  has  been  said  to  show,  that,  as  far  as  regards 
the  slave-trade,  our  position  is  not  analogous  to  that  of 
either  England  or  France,  for  the  double  reason  that  our 
African  population  has  not  been  emancipated,  and  that 
we  are  not  now  compelled  to  recommence  the  slave-trade, 
under  another  form,  to  restore  our  plantations  to  their 
normal  condition.  On  this  point  General  Cass  well 
remarks,  that  "  the  United  States  have  no  tropical  colo- 
nies reduced  from  a  state  of  prosperity  to  adversity, 
and  which  they  seek  to  redeem  from  this  condition  by 
the  introduction  of  involuntary  emigrants  of  any  color 
whatever,  for  the  purpose  of  carrying  on  the  labors  of 
agriculture.  They  have  no  necessity,  nor  any  design, 
to  resort  to  other  countries  for  a  supply  of  forced  labor- 
ers, whether  coolies  or  emigrants  or  apprentices,  or  by 
whatever  name  denominated,  or  of  any  laborers,  who,  if 


VISITATION    AND    SEARCH.  175 

not  compelled  by  actual  force  to  enter  into  distant  servi- 
tude, are  compelled  thereto  by  considerations  little  less 
voluntary,  and  in  utter  ignorance  of  the  true  condition 
into  which  they  are  about  to  enter." 

tt 

It  would  seem,  with  the  whole  power  of  France,  under 
a  sovereign  who  brooks  no  opposition,  directed  to  the 
protection  of  the  trade  for  her  colonies,  while  England 
neglects  to  act  efficiently  on  Spain  as  to  its  suppression 
in  Cuba,  and  is  herself  engaged  in  carrying  on  a  more 
objectionable  traffic  in  human  labor,  as  well  from  Asia 
as  from  Africa,  it  would  be  absurd  to  attempt,  with  a 
squadron  mounting  eighty  guns,  to  do  any  thing  which 
could  bear  sensibly  on  the  great  result.  It  would  be 
like  closing  a  crevice  in  a  rock,  while  the  waters  of 
the  lakes  were  passing  over  the  Niagara  cataract. 
We  abstain  from  what  both  of  the  great  European  pow- 
ers are  doing.  We  neither  invite  wars  among  the  barba- 
rous Africans  for  the  capture  of  prisoners  to  be  sold  to 
us  under  the  name  of  emigrants,  nor  do  we  entice  or 
forcibly  carry  the  unoffending  Asiatics  on  board  our 
vessels  to  be  transported  across  the  ocean  to  drag  out  a 
miserable  existence  devoid  of  all  the  domestic  relations, 
and  without  that  fostering  protection  which  masters  for 
their  own  interest,  not  to  invoke  any  higher  motives, 
are  wont  to  accord  to  those  in  whom  they  have  a  per- 
manent property.  We  do  not  covet  the  unfortunate 
wretches  taken  from  the  slavers  of  all  nations,  and  whose 
fate  by  the  capture  is  simply  changed  by  having  their 
destination  altered  from  Cuba  to  Jamaica.  On  the  con- 
trary, our  interposition  in  the  cause  of  humanity,  as  far 
as  it  extends,  is  not  only  gratuitous  in  the  expenditure 
of  money  and  in  the  sacrifice  of  lives  on  the  African 
coast,  but,  as  early  as  March,  1819,  effectual  provision 


176  VISITATION   AND    SEARCH. 

was  made  for  the  safe-keeping,  support,  and  removal 
beyond  the  limits  of  the  United  States,  of  any  Africans 
captured  by  our  ships,  and  for  the  appointment  of  suit- 
able agents  on  the  coast  of  Africa  to  receive  them.1  It 
was  this  arrangement  which  efficiently  contributed  to 
the  early  success  of  the  Colonization  Society. 

In  conclusion,  we  would  ask  whether  there  exists  any 
duty  to  the  people  or  States  of  the  Union,  any  interna- 
tional claims  on  us,  or  any  benefit  to  accrue  to  humanity, 
even  if  it  be  competent  for  the  federal  government,  from 
considerations  of  general  philanthropy,  to  go  beyond 
the  functions  distinctly  prescribed  for  it  by  the  Consti- 
tution, which  would  justify  a  continuance  of  the  obliga- 
tions imposed  by  the  eighth  article  of  the  Ashburton 
Treaty. 

The  honor  of  the  country  requires  that  the  gallant 
officers  and  seamen  of  the  American  navy  should  no 
longer  act  as  purveyors  of  slaves  for  the  British  planters, 
and  that  our  squadron  should  not  be  used  as  a  tender  to 
the  British  fleet,  and  as  a  decoy  to  bring  within  the 
reach  of  its  cruisers  the  vessels  of  all  nations,  to  be  adju- 
dicated on  in  the  vice-admiralty  courts  of  England. 
Moreover,  as  "  the  introduction  of  a  slave  into  this  coun- 
try is  a  fact  which  the  present  generation  has  not  wit- 
nessed," a  just  appreciation  of  the  nature  of  our  federal 
system  forbids  the  application  of  the  national  resources 
to  purposes  in  nowise  connected  with  the  enforcement 
of  our  laws  ;  while  a  policy,  coeval  with  our  existence 
and  never  deviated  from  with  impunity,  condemns  all 
entangling  alliances  with  European  powers. 

1  United  States  Statutes  at  Large,  Vol.  III.  p.  533. 


VISITATION   AND    SEARCH.  177 

AFTER  the  preceding  sheets  were  in  the  press,  the 
reports  of  further  debates  in  the  two  houses  reached 
the  United  States.  As  parliament  was  about  adjourn- 
ing, they  are  probably  the  last  discussions  of  the  session 
touching  the  subject,  and  are  now  introduced  as  neces- 
sary to  a  full  history  of  the  case. 

In  the  House  of  Commons,  on  the  23d  of  July,  Mr. 
Fitzgerald,  to  an  inquiry  respecting  the  intention  of  the 
government  as  to  visiting  ships  suspected  of  being 
engaged  in  the  slave-trade,  replied,  that  the  matter  was 
under  the  consideration  of  government,  but  he  could  not 
be  expected  to  state  what  course  they  would  take  under 
circumstances  which  had  not  yet  occurred.  He  had, 
however,  every  hope  and  belief,  from  the  language  of 
the  American  government,  and  the  American  ambassa- 
dor, that  the  matter  would  shortly  arrive  at  a  satisfactory 
conclusion. 

Lord  Palmerston  considered  this  reply  unsatisfactory. 
More  information  ought  to  be  given.  From  what  had 
been  stated  by  the  United  States  minister,  he  considered 
there  had  been  some  completed  transactions.  He  there- 
fore asked  what  pretensions  had  been  given  up,  or  what 
right  conceded. 

The  Chancellor  of  the  Exchequer  (Mr.  D'Israeli)  is 
reported  to  have  said,  "  there  had  been  communications 
between  the  two  governments  respecting  the  alleged 
acts  of  British  cruisers,  and  those  communications  were 
now  in  abeyance.  During  that  abeyance  the  govern- 
ment of  the  United  States  had  made  a  friendly  overture 
that  her  Majesty's  government  should  offer  to  the  United 
States  a  plan  for  their  consideration,  which  should  ac- 
complish all  the  objects  that  both  governments  had  in 
view,  namely,  to  put  down  the  slave-trade  without  pro- 


178  VISITATION    AND    SEARCH. 

ducing  misunderstanding.  Her  Majesty's  government 
had  accepted  that  offer,  and  they  were  now  engaged  in 
the  consideration  of  a  plan,  which  they  believed  would 
satisfactorily  accomplish  all  the  objects  that  both  parties 
desired." 

No  better  explanation  of  these  ministerial  statements, 
as  well  as  of  those  which  had  preceded  them,  can  be 
given,  than  in  the  following  language  of  the  Washington 
Union  of  the  sixth  of  August,  which  appeared  before  the 
last  debate  in  the  House  of  Lords  was  received  in  this 
country.  It  moreover  shows  why  the  ministers  who 
have  spoken  in  parliament  have  availed  themselves  of 
the  remarks  of  the  American  Secretary  of  State  and 
minister  in  London,  attributable  to  diplomatic  courtesy, 
for  the  purpose  of  holding  out  at  home  the  idea  of  gain- 
ing, by  conventional  arrangement,  what  they  have  been 
compelled  to  abandon  as  a  right. 

"  The  claim  of  a  right  to  visit  our  ships  with  a  view 
to  ascertain  their  national  character  has  been  fully  and 
completely  abandoned.  This  measure  was  adopted  upon 
the  opinion  of  the  law-officers  of  the  crown,  announced 
in  parliament,  proclaimed  in  the  public  journals,  dis- 
cussed through  England,  and  officially  made  known  to 
our  government. 

"  The  British  government,  as  we  have  stated,  now  ask 
our  government  to  agree  upon  some  plan  by  which  our 
flag  may  be  verified,  and  the  anticipated  abuses  pre- 
vented. Lord  Malmesbury  evidently  thinks,  and  rightly, 
that  what  the  French  propose — namely,  suffering  a  boat 
to  come  along-side  merely  —  will  be  of  very  little  ser- 
vice. Should  the  United  States  agree  to  any  plan  upon 
this  subject,  that  conventional  arrangement  will  settle 
this  point  But  for  ourselves  we  have  very  little  confi- 


VISITATION   AND    SEARCH.  179 

dence  in  such  a  result.  If  it  does  not  take  place,  the 
parties  will  occupy  their  respective  positions  under  the 
law  of  nations,  that  neither  of  them  has  the  right  to 
enter  by  force  the  vessels  of  the  other  under  any  cir- 
cumstances whatever.  If,  after  that,  the  immunity  of 
a  vessel  is  violated,  it  will  be  an  act  of  trespass  for 
which  the  government  doing  the  injury  will  be  respon- 
sible, and  for  which  the  government  injured  may  require 
such  redress  as  it  thinks  just;  and  this  is  all  that  can  be 
said  in  any  case  of  national  injury. 

"  One  remark  may  not  be  misapplied.  The  present 
British  government  have  active,  able,  and  experienced 
opponents  watching  them,  and  seeking  at  all  times  to 
convict  them  of  errors  and  to  remove  them.  The  clear 
surrender  of  a  long-cherished  and  long-enforced  princi- 
ple is  a  new  fact  in  the  history  of  the  foreign  inter- 
course of  England.  It  provokes  unfavorable  animad- 
version, and  is  offensive  to  the  national  pride.  The 
British  ministry  have  to  defend  themselves  in  both 
houses  of  parliament,  and  desire,  of  course,  to  make  the 
best  of  the  case.  Many  things  are  said  in  the  heat  of 
debate  which  are  merely  one-sided,  and  give  a  very  im- 
perfect view  of  the  matter.  They  are  to  be  taken  with 
many  grains  of  allowance.  The  true  position  of  Eng- 
land is  to  be  tested  by  other  and  better  considered  pro- 
ceedings,—  by  the  written  declarations  of  the  cabinet. 
An  instance  illustrative  of  this  is  shown  by  Mr.  D'lsra- 
eli's  remark.  He  says,  speaking  of  the  action  of  the 
English  and  American  governments,  that  there  had  been 
some  communication  between  them  respecting  the  al- 
leged acts  of  British  cruisers,  and  that  the  communica- 
tions are  now  in  abeyance  (that  is,  under  consideration, 
awaiting  proofs)  as  to  whether  damages  had  been  suf- 


180  VISITATION   AND    SEARCH. 

fered,  and  to  what  amount,  and  that  during  such  abey- 
ance endeavors  will  be  made  to  come  to  some  agree- 
ment as  to  the  visitation  of  vessels.  All  this  is  true,  but 
it  is  far  from  being  the  whole  truth.  The  remonstrance 
to  the  British  government  against  this  right  of  visita- 
tion contained  in  General  Cass's  letter  to  Lord  Napier 
of  April  the  10th  is  not  noticed  here  at  all.  That  let- 
ter calls  for  no  damages,  but  discusses  a  great  principle. 
The  demands  for  damages  and  redress  wrere  contained 
in  subsequent  letters,  written  after  the  forcible  search 
of  our  vessels  had  taken  place.  But  the  demand  for 
the  abandonment  of  the  principle  is  not  alleged  to  be 
in  abeyance,  nor  could  it  be,  for  it  had  been  conceded, 
as  Mr.  D'Israeli  well  knew,  and  had  thus  passed  from  the 
category  of  national  complaints,  no  longer  in  existence 
or  abeyance." 

The  National  Intelligencer,  also  published  at  the  seat 
of  government,  says  on  the  7th  of  August :  "  We  have 
had  the  satisfaction  to  learn  that  letters  received  from 
London  by  the  last  steamer  announce  the  full  and  en- 
tire agreement,  on  the  part  of  the  British  ministry,  to 
the  grounds  assumed  by  our  government  in  Secretary 
Cass's  able  despatch  of  the  tenth  of  April  last,  and  the 
consequent  removal  of  all  chance  of  misunderstanding 
growing  out  of  diverse  views  on  the  subject  hereafter. 
While  our  veteran  and  distinguished  statesman  may  well 
be  proud  of  the  homage  paid  by  the  statesmen  of  Eng- 
land to  the  ability  of  his  argument  and  the  conclusiveness 
of  his  appeal  to  the  principles  of  public  law,  the  frank 
admissions  made  by  Lord  Malmesbury  may  be  regarded 
as  a  fresh  proof  of  the  desire  of  the  British  government 
to  avoid  every  just  cause  of  irritation,  and  to  cement 
the  most  friendly  relations  between  the  two  countries." 


VISITATION   ASD    SEARCH.  181 

Iii  the  House  of  Lords,  on  the  26th  of  July,  Lord 
Lyndhurst,  by  whom  it  will  be  recollected  that  the 
phraseology  of  the  Act  of  1839  was  materially  modi- 
fied,1 asked  for  the  correspondence  with  the  United 
States,  on  the  right  of  search  question.  He  commenced 
by  referring  to  a  speech  of  Mr.  Dallas's  on  the  anniver- 
sary of  American  Independence,  in  which  it  had  been 
declared  that  the  right  of  visiting  American  vessels  on 
the  high  seas  was  at  an  end.  He  said  that  some  per- 
sons in  high  positions  considered  that  the  proceeding 
was  not  justified,  and  that  a  most  important  and  valu- 
able right  had  been  sacrificed.  "  We  have  surrendered 
no  right  at  all,  for  no  such  right  as  that  contended  for 
ever  existed.  We  have  abandoned  the  assumption  of  a 
right,  and,  in  doing  so,  we  have  acted  justly,  prudently, 
and  wisely.  I  think  it  is  of  great  importance  that  this 
question  should  be  distinctly  and  finally  understood  and 
settled.  By  no  writer  on  international  law  has  this 
right  ever  been  asserted.  There  is  no  decision  of 
any  court  of  justice  having  jurisdiction  to  decide  such 
questions  in  which  that  right  has  ever  been  admitted. 
I  cannot  refer  to  a  better  English  authority  than  Lord 
Stowell.  He  says :  ( I  can  find  no  authority  that  gives 
the  right  of  interruption  to  the  navigation  of  States  in 
amity  upon  the  high  seas,  excepting  that  which  the 
rights  of  war  give  to  both  belligerents  against  neutrals.' 
Wheaton,  the  eminent  American  authority  on  interna- 
tional law,  says :  e  It  is  impossible  to  show  a  single  pas- 
sage of  any  institutional  writer  on  public  law,  or  a  judg- 
ment of  any  court  by  which  that  law  is  administered, 
which  will  justify  the  exercise  of  such  a  right  on  the 


1  See  p.  34,  note,  supra. 

16 


182  VISITATION   AND    SEARCH. 

high  seas  in  time  of  peace,  independent  of  a  special  com- 
pact.' For  myself,  I  have  never  been  able  to  discover 
any  principle  of  law  or  reason  upon  which  such  a  right 
could  rest.  Lord  Stowell  further  says,  'except  by  a 
belligerent  power,  no  such  right  has  ever  been  claimed, 
nor  can  it  be  exercised  without  the  oppression  of  inter- 
rupting and  harassing  the  real  and  lawful  navigation  of 
other  countries ;  for  the  right  of  search,  when  it  exists 
at  all,  is  universal,  and  will  extend  to  vessels  of  all  coun- 
tries.' In  a  well-known  case,  Judge  Story  expressed 
the  same  opinion. 

"  The  rule  in  respect  to  the  high  seas  is,  that  all  na- 
tions are  there  equal.  A  merchant  ship  is  part  of  the 
dominion  of  the  country  to  which  she  belongs.  What 
right  has  the  ship  of  one  nation  to  interfere  with  the 
ship  of  another  when  their  rights  are  equal  ?  No  nation 
has  a  right  to  interfere  with  the  navigation  of  another 
nation.  Lord  Stowell  says:  'All  nations  being  equal, 
all  have  an  equal  right  to  the  uninterrupted  use  of  un- 
appropriated parts  of  the  ocean  for  their  navigation.' 
It  may  be  that  the  flag  of  America  is  assumed  by  an- 
other power,  to  cover  the  basest  purposes.  That  cannot 
alter  the  right.  How  can  the  conduct  of  a  third  power 
affect  any  right  existing  on  the  part  of  the  United 
States  ?  By  a  treaty  wTith  Spain,  we  have  the  right  to 
visit  and  search  Spanish  vessels,  for  the  suppression  of 
the  slave-trade.  But  that  cannot  affect  the  rights  of 
America.  If  a  cruiser  ascertains,  to  the  best  of  his 
judgment,  that  a  vessel  has  no  right  to  use  the  Ameri- 
can flag,  he  may  visit  and  examine  her ;  and  if  his  sus- 
picions are  correct,  he  may  deal  with  her  according  to 
the  relation  of  the  country  to  which  she  belongs  with 
England.  America  would  have  no  right  to  interfere. 


VISITATION   AND    SEARCH.  183 

It  would  be  a  matter  between  the  English  cruiser  and 
the  vessel  seized.  If  it  should  turn  out  to  be  American, 
we  should  apologize  for  the  act,  and  make  the  most  am- 
ple reparation  for  the  injury.  General  Cass  illustrates 
the  point  very  clearly,  by  a  reference  to  the  case  of  an 
officer  executing  a  warrant,  who,  if  he  is  mistaken,  and 
arrests  a  wrong  person,  must  make  ample  compensation 
for  the  injury  to  the  person  arrested. 

"A  distinction  is  attempted,  without  any  authority, 
between  visitation  and  search.  These  are  words  that 
always  go  together  in  our  international  law,  and  are  ex- 
pressed in  French  by  droit  de  visite.  Mere  visit  does  not 
give  the  necessary  information.  The  moment  you  ask 
to  examine  the  papers,  or  ask  a  single  question,  it  is  a 
search.  The  visit  to  a  particular  vessel,  for  the  purpose 
of  inquiry,  is  the  exercise  of  a  right  comprehended  in 
the  droit  de  visite. 

"  Treaties  have  been  entered  into  between  different 
States,  conferring  the  right  of  visit ;  but  why  make  them 
if  it  is  an  international  right?  After  the  congress  of 
Vienna,  in  1815,  France  refused  it  to  Lord  Castlereagh. 
Richelieu  said, '  France  can  never  consent  to  a  maritime 
police  being  established  over  her  own  subjects,  except 
by  persons  belonging  to  her  own  country.'  There  is  no 
such  thing  as  the  right  of  visit.  We  have  renounced 
no  right  to  the  American  government,  for  no  right 
ever  existed.  It  would  be  very  material  to  adopt 
some  plan  by  which  a  mutual  understanding  should 
exist  that  the  integrity  of  the  flags  should  be  main- 
tained. The  question  is,  however,  a  difficult  one. 
Her  Majesty's  government  have  acted  wisely,  pru- 
dently, and  justly.  It  would  be  most  unwise  and  im- 
prudent to  prosecute  a  claim  that  you  cannot  enforce 


184  VISITATION  AND   SEARCH. 

consistently  with  law,  or  to  attempt  the  enforcement  of 
an  assumed  right,  which  may  lead  to  resistance,  and 
afterwards  to  war.  No  infliction  can  be  worse  to  a  na- 
tion than  a  war  that  is  founded  upon  injustice." 

The  Earl  of  Malmesbury  said :  "  I  think  the  opinion  of 
the  noble  and  learned  lord  (Lord  Lyndhurst)  must  be  of 
immense  consequence  and  value  both  in  Europe  and 
America.  I  feel  that  that  opinion  must  finally  settle 
the  disputed  point ;  and  if  ever  a  single  question  arises, 
that  opinion  must  be  quoted  with  his  great  weight,  as 
he  has  quoted  the  authority  of  Lord  Stowell.  His  views 
.conform  precisely  to  the  opinion  of  the  law-officers  of 
the  crown,  whom  we  thought  it.  our  duty  to  consult  be- 
fore we  answered  the  communications  from  the  Ameri- 
can government.  They  unanimously  asserted  that  the 
international  law,  in  reference  to  this  question,  was  pre- 
cisely as  he  has  described  it.  Upon  that  opinion  the 
government  at  once  acted,  and  frankly  declared  that 
we  had  no  legal  claim,  to  the  right  of  visit  and  search, 
as  hitherto  assumed.  We  therefore  abandoned  both 
these  claims,  but  at  the  same  time  put  before  the  Amer- 
ican government  the  paramount  necessity  of  agree- 
ing upon  instructions  to  be  placed  in  the  hands  of  the 
naval  officers  of  both  countries,  and,  if  possible,  of  all 
maritime  nations,  so  that  all  acting  in  the  same  manner, 
commerce  generally  may  no  longer  be  obstructed,  and 
at  the  same  time  the  fraudulent  use  of  the  flags  of  for- 
eign nations  be  prevented ;  at  all  events,  such  instruc- 
tions as  would  save  us  from  quarrels  arising  out  of  the 
assertion  of  an  assumed  right.  The  American  govern- 
ment have  stated  to  her  Majesty's  government  that  they 
are  ready  to  listen  to  and  consider  any  suggestions  we 
may  make  to  them,  with  the  view  to  the  verification  of 


VISITATION   AND    SEARCH.  185 

the  flag.  We  have  made  the  same  suggestion  to  the 
government  of  France,  who  have  appreciated  the  impor- 
tance of  the  question.  Although  all  agree  that  the  dig- 
nity of  our  several  nations  would  be  more  or  less  com- 
promised by  a  right  of  search,  I  do  not  think  there  can 
be  any  doubt  of  the  necessity  of  establishing  some  sort  of 
security  against  the  fraudulent  use  of  the  national  flag. 
We  have  gone  no  further  than  this  :  we  have  abandoned 
the  right  of  visit  and  search ;  and  the  American  govern- 
ment have  agreed  to  entertain  and  consider  any  sug- 
gestion we  may  make  to  obtain  security  against  the 
fraudulent  use  of  the  flags  of  either  nation.  The 
French  government  are  ready  and  anxious  to  assist  us 
to  attain  the  same  ends." 

The  Earl  of  Aberdeen  said  that  he  had  supposed  the 
question  settled  in  18.42  or  1843,  when  Mr.  Webster  de- 
clared to  Lord  Ashburton  that  the  American  govern- 
ment was  satisfied.  He  does  not  understand  what  Lord 
Malmesbury  means  by  saying  that  the  question  of  the 
right  of  visit  and  of  search  had  been  referred  to  the  law- 
officers.  The  instructions  were  drawn  up  under  the 
inspection  of  Dr.  Lushington  and  Sir  G.  Cockburn, 
and  communicated  to  the  American  minister.  The 
right  of  visit  and  search  had  been  given  up  twenty 
years  ago.  He  read  from  one  of  his  notes  of  1841 
declaring  that  the  British  government  renounced  all 
pretensions  to  visit  and  search  American  vessels  in 
time  of  peace,  but  that  "it  is  the  invariable  practice 
of  the  British  navy  to  ascertain  by  visit  the  real 
nationality  of  merchant  vessels  met  with  on  the  high 
seas,  if  there  be  good  reason  to  apprehend  their  illegal 
character."  Now,  in  ascertaining  these  facts,  he  had 
added,  "the  vessels  referred  to  are  visited,  not  as 

16* 


186  VISITATION   AND    SEARCH. 

American,   but   as   British,   or   vessels  of  other   states 
admitting  the  right  of  search." 

The  most  ample  reparation  should  be  made  for  over- 
hauling an  American  vessel  suspected  to  be  Spanish  or 
a  pirate.  "  I  saw,"  he  said,  "  some  time  ago  an  extract 
from  a  despatch  from  General  Cass,  in  which  that  minis- 
ter stated  the  case  with  the  most  perfect  fairness,  and 
almost  exactly  in  the  same  words  I  have  used  over  and 
over  again."  The  most  entire  tranquillity  for  sixteen 
years  was  the  result  of  his  (Lord  Aberdeen's)  negotia- 
tions. The  recent  unfortunate  affair  had  arisen  from 
the  zeal  of  cruisers  transferred  from  the  coast  of  Africa 
to  the  Cuban  waters,  and  where  they  have  converted 
into  a  rule  that  which  was  intended  only  as  an  excep- 
tion. He  did  not  apprehend  how  the  right  alluded 
to  could  be  given  up.  Unless  some  mode  should  be 
adopted  to  verify  the  nationality  of  any  vessel  on  the 
ocean,  there  can  be  no  security  for  the  preservation  of 
the  police  of  the  ocean,  so  as  to  prevent  the  flag  being 
assumed  by  all  pirates.  He  was  disposed  to  believe  that 
if  the  "instructions"  had  been  followed,  they  could  not 
have  occasioned  dissatisfaction  to  any  power.  His  last 
note  remained  more  than  a  year  unanswered,  because 
the  Secretary  of  State  declared  to  the  British  plenipo- 
tentiary that  the  explanation  was  perfectly  satisfactory. 
In  it  he  had  said  that  the  British  government  ivould  maintain 
their  right  to  ascertain  the  genuineness  of  any  flag  a,  suspected 
vessel  may  carry,  and  that  to  give  up  that  rigM  would  be  im- 
possible. "I  think,"  he  added,  "that  is  the  way  in  which, 
in  common  sense  and  justice,  the  question  ought  to 
stand  and  does  stand  at  this  moment.  I  was  much 
pleased  to  see  from  his  despatch,  that  General  Cass  has 
adopted  the  same  opinion  and  used  the  same  words  as  I 


VISITATION   AND   SEARCH.  187 

myself  employed.  The  exercise  of  this  right,  main- 
tained as  it  has  been  for  the  last  sixteen  years,  will  not 
lead  us  into  any  bad  position,  even  if  no  change  is  made 
in  the  instructions.  If  the  noble  earl  can  improve  the 
system,  I  can  have  no  objection." 

Earl  Granville  never  heard  the  law  as  laid  down  by 
Lord  Aberdeen  doubted.  If  any  alteration  was  to  be 
made  it  was  important  that  Lord  Malmesbury  should 
state  whether  it  was  his  intention  to  abide  by  the 
present  instructions  till  the  communications  with  the 
American  government  \vere  concluded. 

The  Earl  of  Malmesbury  said  that  Lord  Aberdeen 
had  omitted  one  very  important  point.  He  had  as- 
sumed that  the  law  was  as  laid  down  by  Lord  Lynd- 
hurst,  but  he  had  not  said  that  the  American  govern- 
ment went  further,  and  contended  that  they  alone 
had  a  right  to  maintain  their  own  police,  and  whatever 
idea  we  had,  if  the  American  flag  were  flying  on  board 
of  a  vessel,  we  had  no  right  to  visit  or  to  search  her. 
They  have  consistently  maintained  that  they  would  carry 
out  their  own  police,  and  would  be  meddled  with  by  no 
other  country  whatever.  The  difficulty  is,  the  discretion 
that  the  officers  should  exercise.  Lord  Malmesbury  is 
willing  to  admit  that  they  were  acting  under  their  or- 
ders, but  lately  wrhen  the  present  government  entered 
into  office,  there  appeared  to  be  a  very  much  increased 
activity  among  their  cruisers.  In  the  exercise  of  the 
discretion  which  was  given  them  by  Lord  Aberdeen's 
instructions,  their  officers  certainly  went  to  the  extent 
of  searching  one  American  vessel,  and  they  had  no  rea- 
son to  suppose  that  they  were  acting  improperly  in  so 
doing.  The  instructions  have  not  been  altered,  though 
they  might  be  improved  so  as  not  to  expose  the  officers 


188  VISITATION   AXD    SEARCH. 

so  much  as  they  do  to  making  mistakes.  "  Looking  at 
the  question  in  an  international  point  of  view,  and 
pending  the  arrangement  which  I  have  sketched  out 
that  English  cruisers  should  search  suspected  English 
vessels,  that  Americans  should  search  suspected  Ameri- 
can vessels,  and  that  French  cruisers  should  search  sus- 
pected French  vessels,  we  have,"  he  said,  "without 
altering  the  instructions,  suspended  them  until  the 
negotiation  proceeds  further,  and  have  issued  orders  to 
cruisers  on  that  coast  to  respect  the  American  flag 
under  any  circumstances.  America,  on  her  part,  placed 
a  considerable  number  of  cruisers  in  those  waters,  and 
promised  to  use  all  possible  endeavors  to  prevent  her 
flag  being  used  for  the  purposes  of  the  slave-trade." ] 

This  debate  may  well  terminate  the  chapter  on  Vis- 
itation and  Search  in  our  diplomatic  history.  It  leaves 
no  room  for  doubt  as  to  the  abandonment  of  the  British 
claim,  while  the  difficulty  of  any  conventional  adjust- 
ment which  does  not  concede  to  every  country  an  exclu- 
sive police  over  its  own  vessels  seems  to  be  admitted. 
We  repeat  our  conviction  that  none  other  can  be  made. 
Nor  do  we  apprehend  any  inconvenience  from  the  dis- 
continuance by  England  of  an  usurped  right.  The  law 
of  nations  is  the  same  as  it  was  before  her  claim  was 
exercised,  and,  as  has  been  noticed,  a  provision  for  search 
for  piracy  has  never  yet  found  a  place  in  any  treaty. 

The  powers  which  undertook  to  abolish  privateering 
without  the  consent  of  the  United  States  —  the  nation 
most  interested  in  it  —  are  again  in  conclave.  With 
the  exception  of  France  and  Turkey,  they  long  since 
surrendered  their  flags  to  England,  by  the  conclusion  of 

1  London  Times,  July  27,  1858. 


VISITATION   AND    SEARCH.  189 

what  was  intended  to  be  the  Quintuple  Treaty,  or  by 
otherwise  according  the  right  of  search.  It  is  possible 
that  they  may  make  some  .new  law  on  this  subject, 
which  may  obtain,  as  it  is  announced  that  the 
"Paris  declaration"  has,  the  assent  of  those  mighty 
maritime  States,  Saxe  Altenburg  and  Saxe  Coburg- 
Gotha. 

Lord  Aberdeen  only  reiterated  in  his  speech  the  Eng- 
lish doctrines  of  1841-2.  He  had  again  recourse  to 
those  verbal  distinctions,  by  which  he  had  assumed  to 
have  renounced,  in  his  correspondence  with  Mr.  Steven- 
son and  Mr.  Everett,  the  right  of  visitation  and  search 
of  American  vessels ;  while  he  continued  to  maintain  as 
a  right,  a  claim  to  the  verification  of  the  flag  of  every 
ship  at  sea,  to  be  effected  by  the  detention  of  the  ves- 
sel, and  the  examination  of  her  papers  and  "other 
proofs." 

The  Times,  in  commenting  on  the  preceding  debate, 
says :  "  Lord  Aberdeen  had  stood  out  for  so  much  ques- 
tioning, stopping,  and  examining,  equivalent  to  the 
actual  stoppage  and  molestation  of  a  suspected  vessel, 
as  would  help  us  to  discover  whether  the  ship  was 
American  or  not.  This,  his  Lordship  maintained,  we  had 
a  right  to  do,  and  this  he  had  stood  out  for.  This  he  is 
prepared  to  demand;  and  the  demand,  his  Lordship 
urges,  is  not  at  all  incompatible  with  the  total  surrender 

of  the  right  of  visit  and  search What  other  states 

demand,  and  what  we  have  conceded,  recently  as  it 
appears  to  us,  is,  that  the  smallest  act  of  force  or  exhi- 
bition of  superior  strength,  to  the  annoyance  or  interrup- 
tion of  a  foreign  ship  on  the  open  sea,  is  at  once  at  our 
risk.  We  must  do  it  on  the  speculation,  that,  if  we  turn 
out  wrong  in  our  suspicion,  we  must  make  proper  apolo- 


190  VISITATION  AND    SEARCH. 

gies  and  reparation  to  the  suspected  party.  We  have  no 
right  to  fall  lack  upon" 

Another  London  journal,  hitherto  supposed  to  speak 
the  sentiments  of  Lord  Palnierston,  reminds  Lord  Aber- 
deen that  "the  American  government  have  always 
regarded  the  right  of  visitation  and  search,  in  refer- 
ence, first,  to  the  claim  which  England  has  made  to 
impress  British  sailors  from  foreign  vessels,  a  claim 
which  led  to  the  war  of  1812 ;  and  secondly,  in 
reference  to  the  maritime  police,  which,  by  every 
means,  England  has  endeavored  to  enforce  for  the 
meritorious  object  of  suppressing  the  slave-trade. 
Both  questions  ivere  expressly  left  unsettled  ly  the  treaty  of 
1842." 

Again  it  says :  "  According  to  Lord  Aberdeen's  doc- 
trine, because  certain  ruffians  choose  to  make  a  fraudu- 
lent use  of  the  American  flag,  British  cruisers  are  to 
overhaul  every  American  vessel  which  may  be  sus- 
pected to  belong  to  a  country  with  which  England  has 
an  intervisitation  and  slave-trade  suppression  treaty. 
Even  in  Lord  Aberdeen's  last  dispatch,  it  is  declared 
that '  we  maintain  and  exercise  the  right  of  ascertain- 
ing the  genuineness  of  any  flag  that  suspected  vessels 
may  carry.'  The  law-officers  of  the  crown  have  now 
given  a  decided  opinion, '  that,  by  international  law,  this 
country  has  no  right  of  search,  no  right  of  visitation 
whatever,  in  time  of  peace.' "  The  Post  adds :  "  There 
was  a  time  when  England  could  assert  and  enforce  the 
highest  and  most  exclusive  maritime  rights.  By  her 
own  policy,  she  has  for  the  future  rendered  all  such 
attempts  impossible.  She  might  now  as  well  seek  to 
compel  every  foreign  vessel  in  the  four  seas  to  strike 
the  topmast  as  a  mark  of  respect  to  the  British  flag,  as 


VISITATION'  AND    SEARCH.  191 

to  seek  to  enforce,  in  time  of  peace,  rights  which  belong 
exclusively  to  a  time  of  war." l 

The  statement  by  Lord  Lyndhurst  of  the  law  as  now 
acknowledged,  and  which  concedes  to  us  an  exclusive 
police  over  the  vessels  under  our  flag,  with  the  admission 
of  Lord  Malmesbury  that  the  instructions  of  1843,  which 
vested  in  the  naval  officers  a  discretion  that  extended  to 
the  searching  of  the  vessel  require  to  be  changed,  will 
show  how  much  has  been  gained  by  the  late  negotiations. 
The  immunity  of  the  flag  is  placed  beyond  cavil,  in  con- 
sequence of  the  course  adopted  by  the  United  States ; 
and  though  a  total  withdrawal  of  the  existing  instruc- 
tions, with  a  repeal  of  obnoxious  statutes,  might  have 
better  accorded  with  a  just  regard  for  the  rights  of  all 
nations,  we  do  not  think  it  possible  that  the  order  "  to 
respect  the  American  flag  under  any  circumstances," 
will  ever  be  withdrawn. 

The  sentiment  of  continental  Europe  is  not  less  de- 
cided than  that  of  the  English  press  as  to  the  extent  of 
British  concessions.  To  the  Revue  des  deux  mondes,  which 
advocated  the  cause  of  emancipation,  we  have  been 
repeatedly  indebted  for  important  facts.  That  journal, 
after  vindicating  the  loyalty  of  the  parties  concerned 
in  the  affair  of  the  Kegina  Coeli,  and  admitting  that 
there  was  a  delicate  question  for  humanity  in  carrying 
out  the  contract  system  adopted  by  France  on  the  coast 
of  Africa,  remarked,  even  in  advance  of  the  last  discus- 
sions :  — 

"A  vast  change  has  taken  place  in  the  public  opinion 
of  England  as  to  the  means  of  suppressing  the  slave- 
trade.  That  police  of  the  sea,  which  England  had 

1  London  Post,  July  29,  1858. 


192  VISITATION   AND    SEARCH. 

usurped,  that  suppression  by  armed  cruisers  which  Lord 
Palinerston  especially  had  organized  and  maintained  with 
an  intermeddling  obstinacy,  that  practice  of  search  which 
not  only  had  the  inconvenience  of  costing  her  very  dear, 
but  of  exciting,  every  instant,  difficulties  with  the  mari- 
time powers,  —  that  whole  system  is  very  near  being 
abandoned  as  obsolete,  and  injurious  to  English  interests, 
as  well  as  inefficacious  as  regards  the  odious  traffic  which 
it  was  designed  to  destroy.  More  sensible  ideas  take 
the  place  of  the  system  formerly  espoused  by  Lord 
Palinerston.  The  English  liberals  understand  that 
they  are  only  deceiving  themselves  in  attempting  to 
impose  by  force  their  moral  ideas  on  nations  that  will 
not  adopt  them.  They  recognize  the  principle,  that  every 
nation  must  follow  its  own  views  in  matters  of  philan- 
thropy, as  well  as  regards  political  institutions  ;  and 
they  no  longer  pretend  to  any  other  propagandism 
than  that  of  example.  The  tory  ministry  and  the 
radicals  are  agreed  on  this  point,  and  the  solution  of 
the  recent  difficulties  with  the  United  States  inaugu- 
rates this  new  policy.  It  was  with  the  unanimous  ap- 
plause of  the  House  of  Commons  that  the  Under- 
secretary of  State  for  Foreign  Affairs,  Mr.  Fitzgerald,  an- 
nounced the  views  of  the  English  government  in  reference 
to  the  American  reclamations.  The  law-officers  of  the 
crown  have  declared  that  English  vessels  have  not,  in 
time  of  peace,  the  right  of  visiting  vessels  belonging  to 
countries  which  have  not  granted  them  this  right  by  a 
special  treaty.  Such  is  the  position  of  the  United 
States,  and  such  is  also  ours  with  reference  to  Eng- 
land." l 

1  Revue  des  deux  mondes,  ler  Juillet,  1858. 


VISITATION   AND    SEARCH.  193 

For  the  eminent  statesman,  by  whom  our  triumph  has 
been  achieved,  it  is  a  glorious  consummation  of  that 
work,  boldly  undertaken  on  his  own  responsibility,  the 
first  fruit  of  which  was  the  withdrawal  of  France  from 
the  Quintuple  Alliance,  and  the  defeat  of  the  well-laid 
scheme  of  England  for  the  attainment  of  universal  do- 
minion, under  the  guise  of  humanity.  The  juridical 
fame  of  Lord  Lyndhurst,  united  with  the  judicial  au- 
thority of  Lord  Stowell,  now  imparts  a  sanction  to  the 
doctrines  of  the  American  publicists,  Cass  and  Wheaton, 
which  no  future  minister  of  England  can  ever  presume 
to  question. 


17 


APPENDIX. 


A. —  See  page  10. 
ABOLITION  OF   PRIVATEERING. 

{Translated  from  the  Paris  Moniteur  of  July  14,  for  the  New  York 

Herald.) 

MEMORANDUM  TO  THE  EMPEROR. 

SIRE,  —  Your  Majesty  will  deign  to  remember  that  the  powers 
which  signed  the  declaration  of  the  16th  of  April,  1856,  pledged  them- 
selves to  take  steps  to  render  the  adoption  thereof  general.  I  have, 
therefore,  hastened  to  communicate  this  declaration  to  all  the  govern- 
ments which  were  not  represented  in  the  congress  of  Paris,  inviting 
them  in  the  mean  time  to  accede  to  it ;  and  I  now  have  the  honor  to 
inform  the  Emperor  of  the  favorable  reception  which  the  communica- 
tion has  met  with. 

Adopted  and  ratified  by  the  plenipotentiaries  of  Austria,  France, 
Great  Britain,  Russia,  Prussia,  Sardinia,  and  Turkey,  the  declaration 
of  the  16th  of  April  has  received  the  full  adhesion  of  the  following 
powers  :  — 

Baden,  Lubeck, 

Bavaria,  Mecklenburg-Strelitz, 

Belgium,  Mecklenburgh-Schwerin, 

Bremen,  Nassau, 

Brazil,  Oldenburg, 

The  Duchy  of  Brunswick,           Parma, 

Chile,  The  Netherlands, 

The  Argentine  Confederation,     Peru, 


196  APPENDIX. 

The  Germanic  Confederation,     Portugal, 

Denmark,  Saxony, 

The  Two  Sicilies,  Saxe-Altenburg, 

Ecuador,  Saxe-Coburg-Gotha, 

The  Roman  States,  Saxe-Meiningen, 

Greece,  Saxe-Weimar, 

Guatemala,  Sweden, 

Hayti,  Switzerland, 

Hamburg,  Tuscany, 

Hanover,  "Wurtemburg. 
The  Two  Hesses, 

The  above-named  governments  acknowledge,  then,  with  France  and 
the  other  powers,  signers  of  the  treaty  of  Paris  — 

1.  That  privateering  is  and  remains  abolished. 

2.  That  the  neutral  flag  covers  the  cargo  of  the  enemy,  except  when 
it  is  contraband  of  war. 

3.  That  neutral  goods,  except  contraband  of  war,  are  not  seizable 
under  the  enemy's  flag. 

4.  Finally,  that  blockades,  to  be  obligatory,  are  to  be  effective — that 
is  to  say,  maintained  by  a  sufficient  force  to  shut  out  the  access  of  the 
enemy's  ships  and  other  vessels  in  reality. 

The  government  of  Uruguay  has  also  given  its  entire  assent  to  these 
four  principles,  except  its  ratification  by  the  Legislature. 

Spain,  without  acceding  to  the  declaration  of  the  16th  of  April,  on 
account  of  the  first  article  concerning  the  abolition  of  privateering,  has 
answered  that  she  appropriated  the  three  others  as  her  own.  Mexico 
has  given  the  same  answer. 

The  United  States  would  also  be  ready  to  grant  their  adhesion,  if  it 
were  added  to  the  enunciation  of  the  abolition  of  privateering  that  the 
private  property  of  citizens,  subjects  of  the  belligerent  powers,  would 
be  free  from  seizure  at  sea  from  the  war  navies  respectively. 

Save  these  exceptions,  all  the  cabinets  have  adhered  without  reserve 
to  the  four  principles  constituting  the  declaration  of  the  congress  of 
Paris ;  and  thus,  in  the  international  law  of  nearly  all  the  States  of 
Europe  and  America,  a  progress  is  declared  to  which  the  government 
of  your  Majesty,  following  one  of  the  most  honorable  traditions  of 
French  policy,  may  congratulate  itself  to  have  powerfully  contributed. 

In  order  to  authenticate  these  adhesions,  I  propose  to  the  Emperor 


APPENDIX.  197 

to  authorize  the  insertion  in  the  Bulletin  des  Lois  of  the  official  notes 
in  which  these  adhesions  are  consigned ;  and  if  your  Majesty  agrees  to 
that  proposition,  I  will  publish  in  the  same  manner  the  accessions  which 
may  reach  me  subsequently. 

I  am,  with  respect,  Sire,  of  your  Majesty  the  most  obedient  servant 
and  true  subject. 

WALEWSKI. 

Approved,  NAPOLEON,  the  12th  June,  1858. 


B.— Seepage  38. 

Mr.  Forsyth,  Secretary  of  State,  instructed,  on  the  12th  of  July, 
1840,  Mr.  Stevenson,  Minister  of  the  United  States  in  London,  to  ad- 
dress to  Lord  Palmerston  an  official  note,  of  which  the  following  is  an 
extract : — 

"If,  in  the  treaties  concluded  between  Great  Britain  and  other 
powers,  the  latter  have  thought  fit,  for  the  attainment  of  a  particular 
object,  to  surrender  to  British  cruisers  certain  rights  and  authority  not 
recognized  by  maritime  law,  their  officers  charged  with  the  execution 
of  those  treaties  must  bear  in  mind  that  their  operation  cannot  give  a 
right  to  interfere  in  any  manner  with  the  flag  of  nations  not  parties  to 
them.  The  United  States  not  being  such  a  party,  vessels  legally  sail- 
ing under  their  flag  can  in  no  case  be  called  upon  to  submit  to  the 
operation  of  said  treaties ;  and  it  behooves  their  government  to  protect 
and  sustain  its  citizens  in  every  justifiable  effort  to  resist  all  attempts 
to  subject  them  to  the  rules  therein  established,  or  to  any  consequent 
deductions  therefrom. 

"  The  United  States  cannot  look  with  indifference  upon  the  laudable 
exertions  made  by  Great  Britain  and  her  allies  in  the  suppression  of 
the  slave-trade,  towards  the  attainment  of  the  great  object  in  view ; 
and,  so  long  as  those  efforts  are  confined  within  their  proper  spheres, 
they  will  command  applause  and  good  wishes  from  the  people  and 
government  of  the  United  States.  But  they  must  be  considered  as 
exceeding  their  appropriate  limits  whenever  they  shall  lead  to  such 
acts  as  those  which  form  the  subject  of  this  communication.  The 
President  has  been  advised,  that,  on  frequent  occasions,  the  flag  of  the 

17* 


198  APPENDIX. 

United  States,  as  well  as  those  of  other  nations,  has  been  fraudulently 
used  by  subjects  of  other  countries  to  cover  illicit  commerce,  and  elude 
the  pursuit  of  British  and  other  cruisers  employed  in  the  suppression 
of  the  African  slave-trade ;  and  that  a  pretext  has  thereby  been  afforded 
for  boarding,  visiting,  and  interrupting  vessels  bearing  the  American 
flag.  The  several  complaints  to  which  the  subject  has  given  rise 
should  convince  her  Majesty's  government  of  the  great  abuse  to  which 
the  practice  is  liable,  and  make  it  sensible  of  the  propriety  of  its  im- 
mediate discontinuance.  It  is  a  matter  of  regret,  that  this  practice  has 
not  already  been  abandoned.  The  President,  on  hearing  of  the  abuses 
which  had  grown  out  of  it,  and  with  a  view  to  do  away  every  cause  for 
its  longer  continuance,  having  now  directed  the  establishment  of  a 
naval  force  to  cruise  along  those  parts  of  the  African  coast  which 
American  vessels  are  in  the  habit  of  visiting  in  the  pursuit  of  their 
lawful  commerce,  and  where  it  is  alleged  that  the  slave-trade  has  been 
carried  on  under  an  illegal  use  of  the  flag  of  the  United  States,  has  a 
right  to  expect  that  positive  instructions  will  be  given  to  all  her  Majes- 
ty's officers  to  forbear  from  boarding  or  visiting  vessels  under  the 
American  flag.  This  expectation  is  now  distinctly  signified  to  her 
Majesty's  government  in  the  belief  that  it  will  see  the  propriety  of  con- 
fining the  action  of  its  agents  to  the  vessels  of  nations  with  whom  her 
Majesty's  government  has  formed  stipulations  authorizing  a  departure 
from  the  rules  prescribed  by  the  public  law,  and  thereby  prevent  the 
recurrence  of  circumstances  inevitably  productive  of  causes  of  irrita- 
tion, and  deeply  endangering  the  good  understanding  now  existing  be- 
tween the  two  nations,  and  which  it  is  so  much  the  interest  of  both  to 
maintain  uninterrupted." — 29  Cong.,  1  Sess.,  Senate,  Ex.  Doc.,  No. 
377,  p.  27. 


C.  —  See  page  41. 

Extract  from  a  Despatch  from  Mr.  Everett  to  Mr.  Webster,  dated 
Dec.  31,  1841. 

Lord  Aberdeen  rejoined  that  Lord  Ashburton  would  go  with  full 
powers  to  make  a  definitive  arrangement  on  every  point  in  discussion 
between  the  two  countries.  He  was  aware  of  the  difficulty  of  some  of 
them,  particularly  of  what  had  incorrectly  been  called  the  right  of  search, 


APPENDIX.  199 

which  he  deemed  the  most  difficult  of  all ;  but  he  was  willing  to  confide 
this  and  all  other  matters  in  controversy  to  Lord  Ashburton's  discre- 
tion. He  added  that  they  should  have  been  quite  willing  to  come  to  a 
general  arrangement  here,  but  they  supposed  I  had  not  full  powers  for 
such  a  purpose. 

This  measure  being  determined  upon,  Lord  Aberdeen  said  he  pre- 
sumed it  would  be  hardly  worth  while  for  us  to  continue  the  correspond- 
ence here  on  matters  in  dispute  between  the  governments.  He  of 
course  was  quite  willing  to  consider  and  reply  to  any  statement  I  might 
think  proper  to  make  on  any  subject ;  but,  pending  the  negotiations  that 
might  take  place  at  Washington,  he  supposed  no  benefit  could  result 
from  a  simultaneous  discussion  here.  —  29  Cong.,  1  Sess.,  Senate,  Ex. 
Doc.,  No.  377,  p.  89. 


D.  —  See  page  42. 

At  the  opening  of  the  session  of  the  French  Chambers,  December, 
1841,  the  King  said:  "Since  the  close  of  your  last  session,  the  ques- 
tions which  excited  in  the  East  our  just  solicitude,  have  reached  their 
term.  I  have  concluded  with  the  Emperor  of  Austria,  the  Queen  of 
Great  Britain,  the  King  of  Prussia,  the  Emperor  of  Russia,  and  the 
Sultan,  a  convention,  which  consecrates  the  common  intention  of  the 
powers  to  maintain  the  peace  of  Europe,  and  consolidate  the  repose  of 
the  Ottoman  Empire."  —  Annual  Register,  1842,  p.  [281. 

The  treaty  referred  to  was  that  of  July  13,  1841,  for  the  closing 
of  the  Dardanelles ;  but  though  France  was  thus  readmitted,  as  it  were, 
to  the  great  European  Council  of  Nations,  the  effect  of  the  treatment 
which  she  had  received  the  previous  year  was  not  without  its  influence 
on  the  chambers,  in  reference  to  the  Quintuple  Treaty. 


E.  —  See  page  60. 

In  the  debate  on  the  2d  of  March,  1843,  on  the  bill  for  carrying  into 
effect  the  treaty  with  Great  Britain,  a  discussion  involving  the  whole 


200  APPENDIX. 

merits  of  the  subject,  as  regards  the  African  squadron,  and  the  claim 
which  gave  rise  to  it,  took  place.  Mr.  Benton  did  not  think  that  the 
treaty-making  power  had  a  right  to  dispose  of  the  navy.  If  it  had,  it 
might  bind  the  whole  of  it  for  an  indefinite  time,  and  for  a  purpose  not 
political,  but  moral.  He  considered  the  stipulation  for  the  African 
squadron  a  gross  and  fatal  departure  from  the  old  established  policy  of 
the  country.  Besides  entangling  us  in  foreign  alliances,  it  involved  a 
vast  expense  of  money. 

Mr.  Archer  said  that  no  specific  provision  was  requisite  in  order  to 
give  the  President  the  power  of  making  an  application  of  the  sum 
necessary  to  carry  the  treaty  into  effect. 

Mr.  Calhoun  said  the  treaty  had  not  created  the  difficulty  as  to  visi- 
tation, which  had  grown  out  of  other  circumstances.  If  war  should 
take  place  we  should  be  in  a  better  position  on  account  of  the  violation, 
by  England,  of  express  treaty  stipulations.  He  believed  that  the 
President  had  put  a  true  construction  on  the  convention. 

Mr.  Rives,  after  stating  that  he  was  in  favor  of  fully  executing  the 
treaty  till  there  was  some  overt  act  of  contravention  on  the  part  of 
Great  Britain,  said  that  he  did  not  concur  with  Mr.  Archer.  He  was 
of  opinion  that  the  stipulations  of  a  treaty  must  depend,  for  their  exe- 
cution, on  the  free  and  responsible  cooperation  of  the  legislative  depart- 
ment. He  further  said  :  — 

"The  message  of  the  President  to  the  House  of  Representatives, 
while  denying  the  right  of  Great  Britain  to  exercise  a  general  police 
over  the  flags  of  independent  nations,  yet  asserts  that  if  the  vessel  of 
another  nation  —  of  the  United  States,  for  example  —  be  suspected  of 
piracy  upon  what  shall  seem  probable  cause,  the  seizure  and  detention 
of  such  a  vessel  by  a  British  cruiser,  though  the  suspicion  turn  out 
erroneous,  would  give  rise  to  neither  public  responsibility  nor  any 
claim  of  indemnity  to  the  owner.  '  The  right,  under  such  circumstances,' 
says  the  message,  '  not  only  to  visit  and  detain,  but  to  search,  a  ship,  is  a 
perfect  right,  and  involves  neither  responsibility  nor  indemnity.'  Now, 
Mr.  President,  I  must  say,  with  all  respect,  that  this  doctrine  of  the 
message  seems  to  me  not  to  have  been  very  well  considered,  and  can- 
not be  easily  reconciled  with  those  impregnable  principles  of  public  law, 
upon  which  we  have  heretofore  stood  against  the  world  in  arms.  I 
had  supposed,  that,  if  any  principle  of  the  maritime  code  had  been  tri- 
umphantly vindicated  and  upheld  by  the  labor  of  American  statesmen, 
it  was  this :  that,  in  time  of  peace  there  is  no  right,  in  any  case,  on 


APPENDIX.  201 

the  part  of  a  foreign  cruiser,  to  interrupt  or  detain  the  vessels  of  an- 
other nation  upon  the  high  seas ;  that  a  vessel  of  a  nation  on  the  high 
seas,  in  time  of  peace,  partakes  of  the  inviolability  of  her  territory,  and 
that  any  entry  on  board  such  vessel,  without  consent,  is,  in  the  eye  of 
the  law,  a  trespass.  If  a  vessel,  under  the  circumstances  supposed  in 
the  message,  be  suspected  of  being  a  pirate,  a  foreign  cruiser  may, 
upon  her  responsibility,  stop  and  examine  her ;  but  she  does  so  at  her 
peril.  If  the  suspected  vessel  be  in  reality  a  pirate,  no  harm  will  have 
been  done ;  but  if,  on  the  other  hand,  she  proves  to  be  a  bondf.de  ves- 
sel of  the  nation  whose  flag  she  bears,  a  trespass  will  have  been  com- 
mitted, involving  both  responsibility  and  indemnity,  according  to  the 
circumstances  of  the  case. 

"  AYe  admit,  in  the  most  unqualified  manner,  the  right  of  British 
cruisers  to  visit,  detain,  and  search  their  own  vessels,  Portuguese, 
Spanish,  and  Brazilian  vessels,  and  piratical  outlaws,  even  though  any 
of  them  may  have  fraudulently  assumed  the  colors  of  the  United  States. 
But,  to  render  the  act  lawful,  the  vessels  thus  detained  and  searched 
must  be  truly  what  they  are  suspected  to  be,  namely,  British,  Spanish, 
Portuguese,  Brazilian,  piratical,  and  not  bond  fide  American  vessels. 
It  is  an  acknowledged  maxim  of  universal  law,  that  every  party,  while 
exercising  his  own  rights,  must  take  care  not  to  violate  the  rights  of 
others,  Sic  utere  tuo,  ut  non  alienum  Icedas. 

"  Our  late  able  and  distinguished  minister  in  France  (General  Cass), 
who,  at  a  critical  moment  for  the  honor  and  safety  of  his  country,  and 
with  a  promptitude  and  success  which  give  him  lasting  claims  upon  the 
gratitude  of  the  nation,  came  forward  to  vindicate  the  principles  of  our 
American  doctrine  in  the  eyes  of  Europe,  and  especially  of  our  ancient 
and  chivalrous  ally,  has  furnished,  in  his  admirable  exposition  on 
that  occasion,  an  illustration  of  the  subject,  from  the  transactions  of 
civil  life,  which  cannot  fail  to  carry  conviction  to  every  mind.  He 
compares  the  situation  of  a  British  cruiser  claiming,  and  acknowledged 
to  possess,  the  right  to  visit  and  detain  British,  Portuguese,  Spanish, 
and  Brazilian  vessels  on  the  high  seas,  to  that  of  a  ministerial  officer 
of  justice  under  the  municipal  law  who  has  a  writ  or  warrant  of  ap- 
prehension against  a  particular  individual.  His  lawful  authority  is  to 
arrest  A.,  but  he  suspects  B.  to  be  A.  in  disguise.  This  suspicion 
gives  him  no  right  to  arrest  B.,  but  he  may  do  so  at  his  risk.  If  the 
person  apprehended  turns  out  to  be  A.,  the  act  is  justified  by  the  event ; 
but  if,  on  the  other  hand,  he  be  truly  B.,  then  a  trespass  has  been 


202  APPENDIX. 

committed,  and  an  action  of  false  imprisonment  lies  against  the  officer. 
In  this  action,  the  damages,  it  is  true,  may  be  materially  reduced  and 
mitigated  by  the  consideration  of  strong  circumstances  of  suspicion  in 
regard  to  the  identity  of  B.,  and  the  little  actual  injury  he  may  have 
sustained ;  but,  in  every  case  the  inviolability  of  the  personal  liberty 
of  the  citizen  is  maintained  and  vindicated  as  an  inexorable  principle 
of  the  law.  In  like  manner,  we  can  never  admit,  as  a  matter  of  right 
(however  circumstances  in  rare  and  extraordinary  cases  might  be 
allowed  to  mitigate  or  extenuate  the  trespass),  the  claim  of  the  British 
government  to  visit  and  detain  American  vessels  on  the  high  seas,  in 
time  of  peace,  because  they  may  be  suspected  of  being  British,  or  other 
vessels  lawfully  subject  to  search,  and  seeking  to  screen  themselves  by 
hoisting  American  colors.  If  British  cruisers,  under  such  circum- 
stances, visit  and  detain  vessels  which  turn  out  to  be  bond  jide  Amer- 
ican vessels,  they  do  it,  necessarily,  at  their  risk,  and  without  right" 
He  elsewhere  well  says :  "  If  British  cruisers  have  the  right  to  visit 
and  detain  all  flags  they  meet  on  the  ocean,  to  satisfy  themselves  by 
personal  examination  of  their  genuineness,  they  might  enforce  the  right 
in  case  of  any  attempt  to  resist  or  evade  it  by  the  summary  naval 
remedies  of  capture  and  confiscation.  If  a  neutral  vessel,  in  time  of 
war,  attempts  to  resist  or  escape  from  the  exercise  of  the  right  of  search, 
she,  by  that  fact  alone,  subjects  herself  to  capture  and  condemnation 
as  lawful  prize.  The  same  consequence  would  analogically  attend  the 
right  of  visit,  in  time  of  peace,  if  it  exists." 

Mr.  King,  concurring  with  Mr.  Rives,  wished  to  learn  from  the  chair- 
man of  the  Committee  on  Foreign  Relations,  whether  the  portion  of  the 
President's  message  relating  to  the  right  of  visitation,  as  regards  sus- 
pected piracy,  is  correctly  given  in  the  printed  copies  of  the  message ; 
and  if  so,  what  was  the  exact  understanding  of  the  principle. 

Mr.  Archer  replied  that  he  understood  the  law  of  nations  to  relate 
to  piracy  proper  —  not  to  the  piracy  of  the  slave-trade.  —  Congres- 
sional Globe,  Vol.  12,  p.  378,  Appendix,  p.  205. 

The  inquiry  in  question  may  be  supposed  to  have  been  induced,  not 
only  by  the  message  to  the  House  of  Representatives  commented  on 
by  Mr.  Rives,  but  by  a  preceding  one  of  the  9th  of  January,  ad- 
dressed to  the  Senate,  in  answer  to  a  resolution  that  called  on  the 
President,  among  other  matters,  for  information  as  to  the  "  danger 
there  was  that  the  laws  and  obligations  of  the  United  States,  in  rela- 
tion to  the  slave-trade,  would  be  'executed  by  others,'  if  we  did  not 


APPENDIX.  203 

remove  the  '  pretext  and  motive  for  violating  our  flag  and  executing 
our  laws,'  by  entering  into  the  stipulations  contained  in  the  8th  and 
9th  articles  of  the  Ashburton  Treaty."  In  that  message  the  President, 
seemingly  confounding  statute  piracy  with  piracy  under  the  law  of  na- 
tions, had  said :  "  Vessels  of  the  United  States  found  engaged  in  the 
African  slave-trade  are  guilty  of  piracy  under  the  acts  of  congress.  It  is 
difficult  to  say  that  such  vessels  can  claim  any  interference  of  the  govern- 
ment in  their  behalf,  into  whosoever  hands  they  may  happen  to  fall, 
any  more  than  vessels  that  shall  turn  general  pirates.  Notorious  Afri- 
can slave-traders  cannot  claim  the  protection  of  the  American  charac- 
ter, inasmuch  as  they  are  acting  in  direct  violation  of  the  laws  of  their 
country,  and  stand  denounced  by  those  laws  as  pirates.  In  case  of  the 
seizure  of  such  a  vessel  by  a  foreign  cruiser,  and  of  her  being  brought 
into  a  port  of  the  United  States,  what  is  to  be  done  with  her  ?  Shall 
she  be  libelled,  prosecuted,  and  condemned,  as  if  arrested  by  a  cruiser 
of  the  United  States  ?  If  this  is  to  be  done,  it  is  clear  that  the  agency 
of  the  foreign  power  has  been  instrumental  in  executing  the  laws  of 
the  United  States.  Or,  on  the  other  hand,  is  the  vessel,  with  all  her 
offences  flagrant  upon  her,  to  be  released  on  account  of  the  agency  by 
which  she  was  seized,  discharged  of  all  penalties,  and  left  at  liberty  to 
renew  her  illegal  and  nefarious  traffic  ?  " 


F. —  See  page  98. 

President  Buchanan  says,  in  his  annual  message  of  December, 
1857:  — 

"  The  outrage  committed  on  our  flag  by  the  Spanish  war-frigate 
Ferrolana  on  the  high  seas,  off  the  coast  of  Cuba,  in  March,  1855,  by 
firing  into  the  American  mail  steamer  El  Dorado,  and  detaining  and 
searching  her,  remains  unacknowledged  and  unredressed." 


G.— Seepage  127. 

The  following  is  an  extract  from  the  Rhode  Island  memorial,  pre- 
sented by  Mr.  Clay,  on  15th  January,  1851,  to  the  United  States  Sen- 


204  APPENDIX. 

ate.  It  is  the  more  freely  referred  to  as  the  author  of  these  sheets 
was  not  among  the  petitioners.  The  paper  was  signed  by  citizens 
without  distinction  of  party,  and  was  headed  by  the  then  governor,  the 
Hon.  Henry  B.  Anthony,  now  United  States  senator  elect :  — 

"  We  would  respectfully  remind  you  that  all  attempts  to  suppress 
this  diabolical  traffic  through  force  of  arms  has  ever  signally  failed, 
and  that  the  blockade  of  the  slave-coast  by  the  fleets  of  Great  Britain, 
the  United  States,  and  France  combined,  at  an  expense  of  more  than 
$100,000,000  and  the  sacrifice  of  many  lives,  has  resulted  in  a  great 
aggravation  of  the  evil,  instead  of  promoting  its  suppression. 

"We  would  also  respectfully  state  that  we  believe  that  the  only 
effectual  barriers  that  have  ever  been  placed  between  the  slave-dealer 
and  his  victims  in  Africa  have  been  planted  on  her  coasts,  and  those 
have  been  found  in  every  instance  competent  to  its  suppression  or 
control. 

"  We  would  again  respectfully  refer  you  to  a  fact,  which  has  now 
become  unquestionably  established  as  such  by  the  results  of  experience, 
that  that  part  of  the  western  coast  of  Africa  which  ever  has  been  and 
is  now  frequented  by  slavers,  cannot  be  colonized  by  whites,  the  cli- 
mate being  deadly  to  their  constitution,  though  friendly  to  that  of  the 
colored  man. 

u  And  lastly,  we  would  remind  you  that  about  one  third  part  of  this 
coast  has  been  successfully  colonized  by  colored  people  from  the  United 
States  under  the  auspices  of  the  American  Colonization  Society, 
through  the  outlay,  as  your  memorialists  believe,  of  less  than  one  mill- 
ion of  dollars,  and  that  the  colonists  thus  planted  have  effectually  sup- 
pressed the  slave-trade  as  far  as  their  jurisdiction  extends,  which  we 
believe  to  be  in  extent,  as  before  stated,  about  one  third  of  the  whole 
slave-coast  of  western  Africa. 

**  Believing,  as  we  do,  that  the  African  slave-trade  is  not  to  be  sup- 
pressed by  any  armed  intervention,  and  that  experience  has  proved 
that  colonization  of  the  slave-coast  of  Africa  presents  the  only  feasi- 
ble scheme  for  the  suppression  of  the  traffic,  we  most  earnestly  beseech 
you  to  take  into  immediate  consideration  the  propriety  of  establishing 
a  line  of  government  steamers  or  sailing  packets,  for  the  purpose  of 
conveying,  free  of  expense,  such  free  colored  persons  as  may  avail 
themselves  of  such  means  to  emigrate  to  Liberia,  or  to  any  part  of  the 
western  coast  of  Africa  that  may  be  peaceably  colonized  by  them  ;  or 
that  an  annual  appropriation  be  made  by  government,  in  money,  in 


APPENDIX.  205 

aid  of  the  cause  of  African  colonization,  to  the  same  amount  that  is 
now  expended  in  supporting  the  squadron  of  armed  cruisers,  and  the 
outlay  of  which  has,  up  to  the  present  day,  tended  greatly  to  aggra- 
vate, rather  than  to  suppress,  the  most  crying  evil  that  has  ever  existed 
on  earth."  —  Providence  Journal,  January  20,  1851. 


H.  — See  page  137. 

The  following  extract  from  an  article  in  the  Newport  Advertiser  of 
October  29,  1856,  is  inserted  as  giving  a  summary  of  the  negotiations 
that  have  taken  place  with  Spain,  with  particular  reference  to  Cuba :  — 

"  Premising  that  no  American,  as  I  feel  assured,  who  looks  to  the 
benefits  already  accrued  to  us  from  the  acquisition  of  Louisiana  and 
of  Florida,  of  Texas  and  of  the  provinces,  including  California,  ceded 
by  Mexico,  and  to  the  position  of  Cuba  in  reference  to  our  own  secu 
rity,  in  more  than  one  sense,  can  doubt  the  desirableness  of  its  posses- 
sion to  the  United  States,  if  it  can  be  obtained  consistently  with  our 
international  obligations ;  there  will  be  no  difficulty  in  showing  that 
there  is  nothing  in  the  joint  despatch  to  the  Secretary  of  State  of 
Messrs.  Buchanan,  Mason,  and  Soule,  dated  Aix-la-Chapelle,  October 
18,  1854,  and  referred  to  by  our  opponents  as-  the  Ostend  Circular, 
which  is  not  entirely  consistent  with  public  sentiment,  and  with  the 
uniform  course  of  our  government  for  thirty-four  years.  In  the  in- 
troduction to  the  last  edition  of  '  Wheaton's  Elements  of  International 
Law,'  p.  clxxiv.,  published  in  1855,  and*  before  Mr.  Buchanan  was  the 
presidential  candidate,  the  views  which  have  prevailed,  whether  dem- 
ocrats or  their  opponents  were  at  the  head  of  our  affairs,  are  thus  sum- 
marily stated :  — 

" '  The  whole  policy  which,  since  Spain  by  the  independence  of  her 
continental  possessions  has  ceased  to  be  an  important  American  power, 
has  governed  the  United  States,  with  reference  to  Cuba,  was  fully  dis- 
closed in  the  papers  communicated  by  President  Fillmore  to  Congress, 
in  July,  1852,  and  which  comprise  the  correspondence  on  that  subject, 
going  back  to  1822.  At  that  period,  England,  not  apprehending  the 
embarrassments  which,  since  the  emancipation  of  the  negroes  in  her 
own  islands,  the  character  of  the  population  would  occasion  her,  de- 

18 


206  APPENDIX. 

sired  the  possession  of  Cuba,  to  give  her  the  command  of  the  Gulf  of 
Mexico ;  and  it  was  particularly  feared,  that,  should  she  take  the  side 
of  Spain,  in  the  war  in  which  the  latter  was  about  to  be  engaged  with 
France,  the  price  of  English  interposition  might  be  the  cession  to  her 
of  the  two  remaining  islands  of  Cuba  and  Porto  Rico.  Our  policy 
ever  has  been,  that,  while  we  were  content  that  those  islands  should 
remain  with  Spain,  and  would  infringe  no  obligations  of  good  neigh- 
borhood to  obtain  them,  otherwise  than  by  her  voluntary  act,  we  would 
never  allow  them  to  pass  into  the  hands  of  any  great  maritime  power. 
Not  only  have  England  and  France  been  constantly  apprised  that  we 
would  not  consent  to  their  occupation  by  either  of  them,  but,  in  1826, 
at  the  same  time  that  it  was  officially  announced  to  France,  "  that  the 
United  States  could  not  see  with  indifference  Porto  Rico  and  Cuba 
pass  from  Spain  into  the  possession  of  any  other  power,"  we  effectually 
intervened  with  Mexico  and  Colombia  to  suspend  an  expedition  which 
these  republics  were  fitting  out  against  them.  The  United  States, 
however,  even  at  that  period,  explicitly  declared  to  Spain  that  they 
could  enter  into  no  engagement  of  guarantee,  as  such  a  course  was 
utterly  inconsistent  with  our  standing  rules  of  foreign  policy.  The 
most  recent  indications  also  of  the  views  of  the  American  govern- 
ment confirm  the  preceding  statement,  and  show,  that,  while  we  deem 
the  acquisition  of  Cuba  of  the  highest  importance,  and  would  give 
more  than  a  full  equivalent  to  Spain  for  a  transfer  to  us  of  its  sover- 
eignty, we  will  not,  without  a  more  imminent  necessity  than  now  ex- 
ists, make  her  refusal  to  sell  it  to  us  a  ground  for  taking  forcible  pos- 
session of  it,  as  essential  to  the  safety  of  the  Union.' 

"  The  limits  of  this  note  prevent  the  citation  of  official  documents  in 
extenso,  but  it  is  believed  that  the  following  extract  contains  all  that  is 
usually  referred  to  as  objectionable  in  the  '  Ostend  Circular.'  After 
remarking  that  the  United  States  had  never  acquired  a  foot  of  terri- 
tory, not  even  after  a  successful  war  with  Mexico,  except  by  purchase 
or  by  the  voluntary  application  of  the  people  as  in  the  case  of  Texas, 
the  despatch  —  which  it  is  to  be  remembered  was  not  a  manifesto,  or  a 
'  circular,'  as  it  has  been  most  improperly  termed,  but  a  communica- 
tion from  foreign  ministers  abroad  to  the  head  of  the  State  Department 
at  home,  and  which  it  rested  with  our  own  government  to  publish  or 
not  —  thus  proceeds:  'Our  past  history  forbids  that  we  should  acquire 
the  island  of  Cuba  without  the  consent  of  Spain,  unless  justified  by 
the  great  law  of  self-preservation.  We  must,  in  any  event,  preserve 


APPENDIX.  207 

our  own  conscious  rectitude,  and  our  own  self-respect.  Whilst  pur- 
suing this  coui'se,  we  can  afford  to  disregard  the  censures  of  the  world, 
to  which  we  have  been  so  often  and  so  unjustly  exposed.  After  we 
shall  have  offered  Spain  a  price  for  Cuba  for  beyond  its  present  value, 
and  this  shall  have  been  refused,  it  will  then  be  time  to  consider  the 
question,  Does  Cuba,  in  the  possession  of  Spain,  seriously  endanger  our 
internal  peace,  and  the  existence  of  our  cherished  Union  ?  Should  this 
question  be  answered  in  the  affirmative,  then  by  every  law,  human 
and  divine,  we  shall  be  justified  in  wresting  it  from  Spain,  if  we  pos- 
sess the  power;  and  this  upon  the  very  same  principle  that  would  jus- 
tify an  individual  in  tearing  down  the  burning  house  of  his  neighbor, 
if  there  were  no  other  means  of  preventing  the  flames  from  destroying 
his  own  home.  Under  such  circumstances,  we  ought  neither  to  count 
the  cost  nor  regard  the  odds  which  Spain  might  enlist  against  us.  We 
forbear  to  enter  into  the  question,  whether  the  present  condition  of 
the  island  would  justify  such  a  measure.  We  should,  however,  be 
recreant  to  our  duty,  be  unworthy  of  our  gallant  forefathers,  and  com- 
mit base  treason  against  our  posterity,  should  we  permit  Cuba  to  be 
Africanized,  and  become  a  second  St.  Domingo,  with  all  its  attendant 
horrors  to  the  white  race,  and  suffer  the  flames  to  extend  to  our  own 
neighboring  shores,  seriously  to  endanger  or  actually  to  consume  the 
fair  fabric  of  our  Union.' 

"  In  what  respect  does  this  language  differ  from  that  constantly  held 
in  the  instructions  of  our  Secretaries  of  State,  and  in  the  despatches  of 
former  ministers  abroad  ?  Mr.  Adams,  writing  in  1823," as  Secretary 
of  State  under  Mr.  Monroe,  says:  'The  transfer  of  Cuba  to  Great 
Britain  would  be  an  event  unpropitious  to  the  interests  of  this  Union. 
The  question,  both  of  our  right  and  our  power  to  prevent  it,  if  neces- 
sary by  force,  already  obtrudes  itself  upon  our  councils ;  and  the  ad- 
ministration is  called  upon,  in  the  performances  of  its  duties  to  the 
nation,  at  least  to  use  all  the  means  within  its  competency  to  guard 
against  and  forefend  it.' 

"Mr.  Clay,  Secretary  of  State,  in  182G,  says:  'If  the  war  should 
continue  between  Spain  and  the  new  republics,  and  those  islands 
should  become  the  object  and  the  theatre  of  it,  their  fortunes  have  such 
a  connection  with  the  prosperity  of  the  United  States,  that  they  could 
not  be  indifferent  spectators ;  and  the  possible  contingencies  of  such  a 
protracted  war  might  bring  upon  the  government  of  the  United  States 
duties  and  obligations,  the  performance  of  which,  however  painful  it 


208  APPENDIX. 

should  be,  they  might  not  be  at  liberty  to  decline.'  And  again,  Mr. 
Clay  says :  '  Great  Britain  is  fully  aware  that  the  United  States  could 
not  consent  to  her  occupation  of  those  islands  under  any  contingencies 
whatever.' 

"Mr.  Gallatin  writes  from  London,  December,  1826,  'You  will  see 
by  to-day's  papers  that  Chateaubriand,  in  his  speech  to  the  House 
of  Peers,  said,  "  that  England  could  not  take  Cuba,  without  making 
war  on  the  United  States,  and  that  she  knew  it."  This  I  had  told 
him  when  he  was  minister,  and  included  France  in  the  declaration. 
You  renewed  the  declaration  in  a  more  official  form.' 

"In  1837,  Mr.  Stevenson,  minister  at  London,  wrote: — 'I  felt 
justified  in  saying  frankly  to  his  Lordship  that  it  was  impossible  that 
the  United  States  could  acquiesce  in  the  transfer  of  Cuba  from  the 
dominion  of  Spain  to  any  of  the  great  maritime  powers  of  Europe  ; 
that  of  the  right  of  the  United  States  to  interfere,  in  relation  to 
these  islands,  I  presumed  there  could  be  little  doubt ;  that  whilst 
the  general  rule  of  international  law,  which  forbids  the  interference  of 
one  State  in  the  affairs  of  another,  was  freely  admitted,  there  were  yet 
exceptions  to  the  rule,  in  relation  to  the  laws  of  defence  and  self-preser- 
vation, which  all  nations  acknowledged,  and  that  the  present  was  pre- 
cisely such  a  case ;  that  in  this  view,  and  with  a  sincere  desire  to  guard 
against  possible  difficulties,  I  deemed  it  proper  to  say  what  I  had,  and 
hoped  his  Lordship  would  receive  it  in  the  spirit  in  which  it  was 
offered.' 

"  Mr.  Forsyth,  in  1840,  instructed  Mr.  Vail,  at  Madrid,  '  Should  you 
have  reason  to  suspect  any  designs  on  the  part  of  Spain  to  transfer  vol- 
untarily her  title  to  the  island,  whether  of  ownership  or  possession,  and 
whether  permanent  or  temporary,  to  Great  Britain  or  any  other  power, 
you  will  distinctly  state  that  the  United  States  will  prevent  it  at  all 
hazards,  as  they  will  any  foreign  military  occupation,  for  any  pretext 
whatever.' 

"Mr.  Webster,  Secretary  of  State,  in  1843,  says:  'The  Spanish 
government  has  long  been  in  possession  of  the  policy  and  wishes 
of  this  government  in  regard  to  Cuba,  which  have  never  changed, 
and  has  been  repeatedly  told  that  the  United  States  never  would 
permit  the  occupation  of  that  island  by  British  agents  or  forces,  upon 
any  pretext  whatsoever.' 

"Mr.  Buchanan,  instructing  as  Secretary  of  State,  in  1848,  under 
Mr.  Polk,  the  minister  to  Madrid,  expresses  the  same  views  as  his 


APPENDIX.  209 

predecessors  liad  done,  and  as  are  contained  in  the  despatch  in  ques- 
tion. 

" '  By  direction  of  the  President,  I  now  call  your  attention  to  the 
present  condition  and  future  prospects  of  Cuba.  The  fate  of  this 
island  must  ever  be  deeply  interesting  to  the  people  of  the  United 
States.  We  are  content  that  it  shall  continue  to  be  a  colony  of  Spain- 
Whilst  in  her  possession,  we  have  nothing  to  apprehend.  Besides,  we 
are  bound  to  her  by  the  ties  of  ancient  friendship,  and  we  sincerely 
desire  to  render  these  perpetual. 

" '  But  we  can  never  consent  that  this  island  shall  become  a  colony 
of  any  other  European  power.  In  the  possession  of  Great  Britain,  or 
any  strong  naval  power,  it  might  prove  ruinous  both  to  our  domestic 
and  foreign  commerce,  and  even  endanger  the  union  of  the  States. 
The  highest  and  first  duty  of  every  independent  nation  is  to  provide 
for  its  own  safety ;  and,  acting  upon  this  principle,  we  should  be  com- 
pelled to  resist  the  acquisition  of  Cuba  by  any  powerful  maritime 
State,  with  all  the  means  which  Providence  has  placed  at  our  com- 
mand.' 

"  Mr.  Everett,  Secretary  of  State,  in  1852,  having  in  a  despatch,  which 
is  a  model  of  diplomatic  eloquence,  rejected  all  idea  of  a  Tripartite 
treaty  between  France,  England,  and  the  United  States,  to  guarantee 
Cuba  to  Spain,  thus  concludes  his  notes  to  the  French  and  English 
ministers :  — 

" '  No  administration  of  this  government,  however  strong  in  public 
confidence  in  other  respects,  could  stand  a  day  under  the  odium  of 
having  stipulated  with  the  great  powers  of  Europe,  that  in  no  future 
time,  under  no  change  of  circumstances,  by  no  amicable  arrangement 
with  Spain,  by  no  act  of  lawful  war  (should  that  calamity  unfortunately 
occur),  by  no  consent  of  the  inhabitants  of  the  island,  should  they,  like 
the  possessions  of  Spain  on  the  American  continent,  succeed  in  ren- 
dering themselves  independent ;  in  fine,  by  no  overruling  necessity  of 
self-preservation  should  the  United  States  ever  make  the  acquisition 
of  Cuba.' 

"  Mr.  Marcy,  adverting  to  the  correspondence  consequent  on  Mr.  Ev- 
erett's note,  in  his  instructions  to  Mr.  Buchanan,  in  July,  1853,  says : '  For 
many  reasons,  the  United  States  feel  a  deep  interest  in  the  destiny  of 
Cuba.  They  will  never  consent  to  its  transfer  to  either  of  the  inter- 
vening nations,  or  to  any  other  foreign  State.' 

"  The  Cincinnati  platform  in  no  otherwise  refers  to  the  acquisition  of 

18* 


210  APPENDIX. 

Cuba  than  is  implied  by  the  resolution  that  '  the  democratic  party  will 
expect  of  the  next  administration  that  every  proper  effort  will  be 
made  to  insure  our  ascendancy  in  the  Gulf  of  Mexico.'  And  the 
committee  of  the  convention  who  waited  on  Mr.  Buchanan  to  announce 
his  nomination,  having  expressed  their  conviction  '  that  our  foreign 
affairs  will  be  conducted  with  such  wisdom  and  firmness  as  to  assure 
the  prosperity  of  the  people  at  home,  while  the  interests  and  honor  of 
our  country  are  wisely  but  inflexibly  maintained  in  our  intercourse 
with  other  nations,'  he  replied :  — 

" '  In  regard  to  our  foreign  policy,  to  which  you  have  referred  in 
your  communication,  it  is  quite  impossible  for  any  human  foreknowl- 
edge to  prescribe  positive  rules  in  advance,  to  regulate  the  conduct  of 
a  future  administration  in  all  the  exigencies  which  may  arise  in  our 
various  and  ever-changing  relations  with  foreign  powers.  The  fed- 
eral government  must  of  necessity  exercise  a  sound  discretion  in  deal- 
ing with  international  questions  as  they  may  occur ;  but  this  under 
the  strict  responsibility  which  the  Executive  must  always  feel  to  the 
people  of  the  United  States  and  the  judgment  of  posterity.  You  will, 
therefore,  excuse  me  for  not  entering  into  particulars,  whilst  I  heartily 
concur  with  you  in  the  general  sentiment  that  our  foreign  affairs  ought 
to  be  conducted  with  such  firmness  as  to  assure  the  prosperity  of  the 
people  at  home,  whilst  the  interest  and  honor  of  our  country  are  wisely 
but  inflexibly  maintained  abroad.  Our  foreign  policy  ought  ever  to 
be  based  upon  the  principle  of  doing  justice  to  all  nations,  and  requir- 
ing justice  from  them  in  return ;  and  from  this  principle  I  shall  never 
depart. 

"  '  Should  I  be  placed  in  the  Executive  chair,  I  shall  use  my  best 
exertions  to  cultivate  peace  and  friendship  with  all  nations,  believing 
this  to  be  our  highest  policy,  as  well  as  our  most  imperative  duty ;  but, 
at  the  same  time,  I  shall  never  forget,  that,  in  case  the  necessity  should 
arise,  which  I  do  not  now  apprehend,  our  national  rights  and  national 
honor  must  be  preserved  at  all  hazards  and  at  any  sacrifice.' " 


I.  —  See  page  143. 

The   following   instructions  of  Mr.  Reed,  minister  of  the   United 
States  in  China,  to  Ihe  American  consul  at  Macao,  with  regard  to  the 


APPENDIX.  211 

coolie  trade,  appropriately  connect  themselves  with  the  instructions  of 
the  Secretary  of  the  Treasury  to  the  collector  of  Charleston,  in  refer- 
ence to  African  "  emigrants."  Taken  together  they  show  that  the  good 
faith  of  the  United  States  most  emphatically  contrasts  with  the  policy 
of  England  and  France,  who  are  evasively  substituting  a  more  objec- 
tionable slave-trade  to  that,  the  suppression  of  which  Great  Britain  has 
so  persistently  made  the  apology  for  usurping  the  dominion  of  the  sea 
with  the  monopoly  of  the  commerce  of  Africa. 

COOLIE  TRADE. 
Mr.  Reed  to  Consul  Rawle. 

"  LEGATION  OF  THE  UNITED  STATES, 
MACAO,  January  5,  1858. 

"  Sir,  —  Since  the  receipt  of  Mr.  Marcy's  letter  of  the  18th  ultimo, 
written  on  your  behalf,  my  attention  has  been  again  called  to  the  sub- 
ject of  the  shipment,  in  American  vessels,  of  Chinese  laborers,  com- 
monly known  as  coolies,  especially  to  the  Island  of  Cuba. 

"  Full  consideration  of  the  matter  has  satisfied  me  of  the  necessity 
of  a  resolute  effort  to  arrest  a  traffic  which,  in  its  inevitable  abuses,  is 
repugnant  to  the  instincts  of  humanity,  in  contravention  of  the  laws  of 
the  Chinese  government,  and  as  clearly  a  violation  of  the  well-settled 
policy  of  the  government  of  the  United  States. 

"My  immediate  predecessor,  as  you«are  aware,  felt  it  his  duty  to 
condemn  this  trade  by  a  proclamation,  or  circular,  in  the  spirit  of  which 
I  entirely  sympathize.  Mr.  Marshall,  in  1853,  made  it  the  subject  of 
earnest  remonstrance  and  of  anxious  correspondence  with  the  govern- 
ment at  home.  Neither  effort  has  been  permanently  successful  in 
putting  a  stop  to  it,  and,  learning  as  I  do  that  the  trade  is  in  full  vigor, 
not  only  in  some  of  the  northern  ports  of  China,  but  that  American 
vessels  are  now  loading  here  for  Havana  especially,  I  feel  it  incumbent 
on  me  to  try  by  a  still  more  precise  effort  to  prevent  it. 

"  How  far  the  transfer  of  coolies  from  the  Chinese  territory  to  the 
Portuguese  colony  of  Macao,  and  hence  to  an  American  vessel  for  trans- 
portation, is  a  violation  of  the  laws  of  China  and  the  treaty  by  the 
American  shipper,  it  is  not  necessary  now  to  decide. 

"  So  far  as  the  citizens  and  authorities  of  the  United  States  are  con- 
cerned, the  question  of  duty  and  responsibility  may  be  disposed  of  more 
easily  and  precisely. 


212  APPENDIX. 

"I  am  satisfied  that  the  carrying  of  Chinese  laborers  —  coolies  —  in 
American  ships  from  any  foreign  ports  to  any  port,  foreign  or  domestic, 
there  to  be  held  to  service,  is  prohibited  by  Acts  of  Congress,  and  ex- 
poses the  master  to  a  heavy  penalty  and  the  forfeiture  of  his  vessel  on 
its  arrival  in  the  United  States,  and  this  whether  the  laborers  be  taken 
to  the  United  States  or  not. 

"  This  being  so,  there  can  be  no  question  as  to  the  duty  of  the 
United  States  officers  in  China,  and  I  now  point  it  out  to  you. 

"Understanding  that  there  is  an  American  vessel  ('The  Flora 
Temple '),  commanded  by  an  American  master,  now  lying  in  the  roads 
awaiting  a  cargo  of  coolies  to  be  carried  to  Havana,  I  request  you,  on 
receipt  of  this  letter,  to  address  the  Spanish  colonial  authorities  at  this 
port,  either  personally  or  in  writing,  informing  them  of  the  views  of 
this  trade  entertained  by  me  as  the  chief  diplomatic  representative  of 
the  United  States  in  China,  and  that  I  consider  it  expressly  prohibited 
by  law.  I  have  every  reason  to  hope,  from  the  friendly  relations  of 
the  government  of  her  most  Catholic  Majesty  to  the  United  States, 
and  of  the  personal  high  character  of  Mr.  Canete,  the  Spanish  consul- 
general,  that  this  intimation  will  be  sufficient  to  prevent  any  continu- 
ance or  official  sanction  on  his  part  to  an  illegal,  and,  therefore,  pro- 
hibited trade. 

"  I  request  you  further  to  call  the  attention  of  the  master  of  the  ves- 
sel to  his  responsibility,  and  to  say  to  him  that  if  he,  being  an  Ameri- 
can citizen,  or  resident  of  the  United  States,  shall  take  on  board, 
receive,  or  transport  from  this  port,  or  any  port  in  China  or  its  depend- 
encies, any  Chinese  coolie  or  laborer,  for  the  purpose  of  disposing  of 
such  person  as  a  slave,  or  to  be  held  to  service  or  labor  in  the  United 
States  or  elsewhere,  he  will  expose  himself,  on  his  arrival  in  the  United 
States,  to  a  prosecution  for  a  violation  of  the  Act  of  Congress,  with 
the  penalty  of  fine  and  imprisonment  and  the  forfeiture  of  his  vessel. 

"  You  will  further  inform  him,  that,  in  the  event  of  a  disregard  of 
such  a  premonition,  given  in  a  spirit  of  entire  friendliness  and  fairness, 
I  shall  feel  it  to  be  my  duty  to  inform  the  government  of  the  facts,  and 
to  recommend  a  prosecution  for  so  clear  and  deliberate  a  violation  of 
law.  I  have  no  reason  to  doubt  that  such  a  recommendation  will  at 
once  be  regarded. 

"  I  desire  you  further  to  furnish  me  with  such  evidence  in  the  form 
of  consular  certificate,  and  affidavit  of  some  competent  person,  of  the 
facts  of  the  shipment  in  case  it  be  persisted  in.  There  will  be  abun- 


APPENDIX.  213 

dant  time  for  the  authorities  at  home  to  anticipate  the  arrival  of  any 
such  vessel  in  Cuba,  and  to  procure  complete  evidence  there,  provided 
you  communicate  in  season  the  fact  of  the  departure  hence. 

"  You  will  of  course  understand  that  these  directions  are  not  con- 
fined to  any  particular  case,  but  are  meant  to  regulate  your  official  con- 
duct with  reference  to  the  prohibited  trade  generally.  Copies  of  these 
directions  will  be  sent  to  the  consuls  at  the  other  ports. 

"  I  have  to  request  that  for  the  future  enumeration  be  made  of  all 
coolies  shipped  in  American  vessels  from  this  port  and  forwarded  to 
this  legation.  I  shall  be  glad  to  have  a  statement  of  such  as  have 
already  gone." 


J.  —  See  page  149. 
Lord  Aberdeen  to  Mr.  Packenham. 

"FOREIGN  OFFICE,  December  25,  1843. 

"  Sir,  —  As  much  agitation  appears  to  have  prevailed  of  late  in  the 
United  States  relative  to  the  designs  which  Great  Britain  is  supposed 
to  entertain  with  regard  to  the  republic  of  Texas,  her  Majesty's  gov- 
ernment deem  it  expedient  to  take  measures  for  stopping  at  once  the 
misrepresentations  which  have  been  circulated,  and  the  errors  into 
which  the  government  of  the  United  States  seems  to  have  fallen  on  the 
subject  of  the  policy  of  Great  Britain  with  respect  to  Texas.  That 
policy  is  clear  and  simple,  and  may  be  stated  in  a  few  words. 

"  Great  Britain  has  recognized  the  independence  of  Texas,  and, 
having  done  so,  she  is  desirous  of  seeing  that  independence  finally  and 
formally  established,  and  generally  recognized,  especially  by  Mexico. 
But  this  desire  does  not  arise  from  any  motive  of  ambition  or  self- 
interest,  beyond  that  interest,  at  least,  which  attaches  to  the  general 
extension  of  our  commercial  dealings  with  other  countries. 

"  We  are  convinced  that  the  recognition  of  Texas  by  Mexico  must 
conduce  to  the  benefit  of  both  these  countries ;  and,  as  we  take  an  in- 
terest in  the  well-being  of  both,  and  in  their  steady  advance  in  power 
and  wealth,  we  have  put  ourselves  forward  in  pressing  the  government 
of  Mexico  to  acknowledge  Texas  as  independent.  But  in  thus  acting 
we  have  no  occult  design,  either  with  reference  to  any  particular  in- 


214  APPENDIX. 

fluence  which  we  might  seek  to  establish  in  Mexico  or  in  Texas,  or 
even  with  reference  to  the  slavery  which  now  exists,  and  which  we 
desire  to  see  abolished  in  Texas. 

"  With  regard  to  the  latter  point,  it  must  be,  and  is,  well  known, 
both  to  the  United  States  and  to  the  whole  world,  that  Great  Britain 
desires,  and  is  constantly  exerting  herself  to  procure,  the  abolition  of 
slavery  throughout  the  world.  But  the  means  which  she  has  adopted, 
and  will  continue  to  adopt,  for  this  humane  and  virtuous  purpose, 
are  open  and  undisguised.  She  will  do  nothing  secretly  or  under- 
hand. She  desires  that  her  motives  may  be  generally  understood, 
and  her  acts  seen  by  all. 

"  "With  regard  to  Texas,  we  avow  that  we  wish  to  see  slavery  abol- 
ished there,  as  elsewhere,  and  we  should  rejoice  if  the  recognition  of 
that  country  by  the  Mexican  government  should  be  accompanied  by 
an  engagement  on  the  part  of  Texas  to  abolish  slavery  eventually,  and 
under  proper  conditions,  throughout  the  republic.  But  although  we 
earnestly  desire,  and  feel  it  to  be  our  duty  to  promote,  such  a  consum- 
mation, we  shall  not  interfere  unduly,  or  with  an  improper  assumption 
of  authority,  with  either  party,  in  order  to  secure  the  adoption  of  such 
a  course.  "We  shall  counsel,  but  we  shall  not  seek  to  compel,  or  unduly 
control,  either  party.  So  far  as  Great  Britain  is  concerned,  provided 
the  other  States  act  with  equal  forbearance,  those  governments  will  be 
fully  at  liberty  to  make  their  own  unfettered  arrangements  with  each 
other,  both  in  regard  to  the  abolition  of  slavery  and  to  all  other  points. 

"  Great  Britain,  moreover,  does  not  desire  to  establish  in  Texas, 
whether  partially  dependent  on  Mexico,  or  entirely  independent  (which 
latter  alternative  we  consider  in  every  respect  preferable),  any  domi- 
nant influence.  She  only  desires  to  share  her  influence  equally  with 
all  other  nations.  Her  objects  are  purely  commercial,  and  she  has  no 
thought  or  intention  of  seeking  to  act,  directly  or  indirectly,  in  a  polit- 
ical sense,  on  the  United  States  through  Texas. 

"  The  British  government,  as  the  United  States  well  know,  have 
never  sought  in  any  way  to  stir  up  disaffection  or  excitement  of  any 
kind  in  the  slaveholding  States  of  the  American  Union.  Much  as  we 
should  wish  to  see  those  States  placed  on  the  firm  and  solid  footing 
which  we  conscientiously  believe  is  to  be  attained  by  general  freedom 
alone,  we  have  never,  in  our  treatment  of  them,  made  any  difference 
between  the  slaveholding  and  the  free  States  of  the  Union.  All  are, 
in  our  eyes,  entitled,  as  component  members  of  the  Union,  to  equal 


APPENDIX.  215 

political  respect,  favor,  and  forbearance,  on  our  part.  To  that  wise 
and  just  policy  we  shall  continue  to  adhere,  and  the  governments  of 
the  slaveholding  States  may  be  assured,  that,  although  we  shall  not  de- 
sist from  those  open  and  honest  efforts  which  we  have  constantly  made 
for  procuring  the  abolition  of  slavery  throughout  the  world,  we  shall 
neither  openly  nor  secretly  resort  to  any  measures  which  can  tend  to 
disturb  their  internal  tranquillity,  or  thereby  to  affect  the  prosperity  of 
the  American  Union. 

"  You  will  communicate  this  despatch  to  the  United  States  Secretary 
of  State,  and  if  he  should  desire  it,  you  will  leave  a  copy  of  it  with 
him." 

Mr.  Calhoun  to  Mr.  Packenham. 

"DEPARTMENT  OF  STATE,  i 

WASHINGTON,  April  18,  1844.  ) 

"The  undersigned,  Secretary  of  State  of  the  United  States,  has  laid 
before  the  President  the  note  of  the  Right  Honorable  Mr.  Packenham, 
Envoy  Extraordinary  and  Minister  Plenipotentiary  of  her  Britannic 
Majesty,  addressed  to  this  Department  on  the  26th  of  February  last, 
together  with  the  accompanying  copy  of  a  despatch  of  her  Majesty's 
Principal  Secretary  of  State  for  Foreign  Affairs,  to  Mr.  Packenham. 
In  reply,  the  undersigned  is  directed  by  the  President  to  inform  the 
Right  Honorable  Mr.  Packenham,  that,  while  he  regards  Avith  pleasure 
the  disavowal  of  Lord  Aberdeen  of  any  intention  on  the  part  of  her 
Majesty's  government  to  '  resort  to  any  measures,  either  openly  or  se- 
cretly, which  can  tend  to  disturb  the  internal  tranquillity  of  the  slave- 
holding  States,  and  thereby  affect  the  tranquillity  of  this  Union,'  he,  at 
the  same  time,  regards  with  deep  concern  the  avowal,  for  the  first  time, 
made  to  this  government,  '  that  Great  Britain  desires,  and  is  constantly 
exerting  herself,  to  procure  the  general  abolition  of  slavery  throughout 
the  world.' 

"  So  long  as  Great  Britain  confined  her  policy  to  the  abolition  of 
slavery  in  her  own  possessions  and  colonies,  no  other  country  had  a 
right  to  complain.  It  belonged  to  her  exclusively  to  determine,  ac- 
cording to  her  own  views  of  policy,  whether  it  should  be  done  or  not. 
But  when  she  goes  beyond,  and  avows  it  as  her  settled  policy,  and  the 
object  of  her  constant  exertions,  to  abolish  it  throughout  the  world,  she 
makes  it  the  duty  of  all  other  countries,  whose  safety  or  prosperity  may 
be  endangered  by  her  policy,  to  adopt  such  measures  as  they  may 
deem  necessary  for  their  protection. 


216  APPENDIX. 

"  It  is  with  still  deeper  concern  the  President  regards  the  avowal  of 
Lord  Aberdeen  of  the  desire  of  Great  Britain  to  see  slavery  abolished 
in  Texas ;  and,  as  he  infers,  is  endeavoring,  through  her  diplomacy,  to 
accomplish  it,  by  making  the  abolition  of  slavery  one  of  the  conditions 
on  which  Mexico  should  acknowledge  her  independence.  It  has  con- 
firmed his  previous  impressions  as  to  the  policy  of  Great  Britain  in 
reference  to  Texas,  and  made  it  his  duty  to  examine  with  much  care 
and  solicitude  what  would  be  its  effects  on  the  prosperity  and  safety  of 
the  United  States  should  she  succeed  in  her  endeavors.  The  investi- 
gation has  resulted  in  the  settled  conviction  that  it  would  be  difficult 
for  Texas,  in  her  actual  condition,  to  resist  what  she  desires,  without 
supposing  the  influence  and  exertions  of  Great  Britain  would  be  ex- 
tended beyond  the  limits  assigned  by  Lord  Aberdeen,  and  that,  if 
Texas  could  not  resist  the  consummation  of  the  object  of  her  desire, 
would  endanger  the  safety  and  prosperity  of  the  Union.  Under  this 
conviction,  it  is  felt  to  be  the  imperious  duty  of  the  federal  govern- 
ment, the  common  representative  and  protector  of  the  States  of  the 
Union,  to  adopt,  in  self-defence,  the  most  effectual  measures  to  defeat 
it."  —  Cong.  Globe,  Vol.  XII.  part  2,  p.  481. 


K. —  See  page  150. 

The  great  diminution  in  the  trade  between  the  United  States  and 
the  British  West  India  islands  is  also  an  illustration  of  the  consequences 
of  the  abolition  policy.  No  subject  connected  with  our  commercial 
intercourse  had  attracted  more  attention,  from  the  time  of  the  Revo- 
lution till  the  period  of  emancipation,  than  this  trade,  which  was 
often  sought  for  by  us  as  a  boon.  So  much  importance  was  at- 
tached to  it  in  1794,  that  Mr.  Jay  introduced  a  provision  into  the 
treaty  of  that  year,  by  which  the  United  States,  in  return  for  being 
allowed  to  participate  in  it  to  a  limited  degree,  were  to  be  restricted 
from  exporting  all  colonial  productions,  not  only  from  the  West  Indies, 
but  from  the  United  States,  to  any  other  part  of  the  world.  Among  the 
enumerated  productions  was  cotton,  of  the  existence  of  which,  in  our 
Southern  States,  the  American  negotiator  was  ignorant.  (United 
States  Statutes  at  Large,  Vol.  VIII.  p.  123.)  But  though  the  opera- 


APPENDIX.  217 

tion  of  that  article  was  suspended,  and  never  went  into  effect,  England, 
in  1815  and  1818,  refused  to  include  the  West  Indies  and  the  British 
possessions  in  North  America  in  the  rule  of  reciprocity,  as  regards 
the  navigation  of  the  two  countries,  adopted  for  her  dominions  in  Eu- 
rope. (Ibid.  pp.  228,  249.)  The  trade  was  repeatedly  interrupted  by 
retaliatory  legislation.  This  was  especially  the  case  in  1826,  in  conse- 
quence of  the  United  States  omitting  to  avail  themselves  of  the  proffer, 
made  by  the  act  of  parliament  of  July,  1825,  to  all  nations  not  having 
colonies,  to  put  the  trade  of  Great  Britain  and  her  possessions  abroad 
on  the  footing  of  the  most  favored  nation.  To  remove  these  difficul- 
ties was  one  of  the  objects  of  Mr.  Gallatin's  mission  in  1826-7,  but  in 
that  respect  he  was  unsuccessful.  The  interruption  of  this  intercourse 
was  used  with  effect  during  the  Presidential  canvass  of  1828,  and  on 
the  election  of  General  Jackson  negotiations  were  undertaken,  which 
resulted  in  an  agreement,  by  which  the  trade  was  resumed  in  1830 
under  the  legislation  of  the  two  countries.  (American  Annual  Regis- 
ter, 1826-7,  p.  22 ;  Ibid.  1827-8-9,  p.  4 ;  Ibid.  1829-30,  p.  52.) 

But  although  all  actual  restrictions  on  colonial  intercourse  have 
ceased  since  the  Act  of  the  12  and  13  Viet.  c.  29  (26  June,  1849), 
and  it  is  open  to  the  navigation  of  all  countries  on  the  same  terms  as 
to  the  British,  the  imports  from  the  West  Indies  into  the  United  States? 
which,  in  1795,  were  $6,426,091,  in  1856-7  were  only  $2,653,698. 
Our  imports  from  the  Spanish  West  Indies,  at  the  former  period,  were 
31,739,138,  and  at  the  latter,  from  Cuba  alone,  $45,243,101.  The 
total  imports  of  the  United  States,  at  the  same  time,  advanced  from 
$69,756,258  to  $360,890,140. 


L.  —  See  page  170. 

New  England  consumed  in  1856,  652,739  bales  of  cotton,  or,  at  450 
pounds  a  bale,  293,732,550  pounds,  costing  more  than  $31,000,000, 
and  the  value  of  which  was,  when  manufactured,  at  least  $150,000,000. 
We  learn  from  Mr.  Claiborne's  late  report,  that  of  187,851,768  pounds 
imported  into  France  in  1856,  175,613,672  pounds  were  from  the 
United  States.  He  also^tates  that  nine  tenths  of  the  consumption  of 
cotton-wool  in  Switzerland  was  of  the  growth  of  the  United  States. 

19 


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